evidence

Connickally yours

The problem with Brady v. Maryland, as many have argued, is that its effectiveness depends entirely on the charity and goodwill of prosecutors who are tasked with enforcing it. The only sword hanging over prosecutors’ head, forcing them to do “the right thing” is one that brings as its punishment obscure and vague references to the office they work in, buried deep in mildly reproachful appellate decisions. A vague notion called the “interests of justice” and pithy phrases reminding them that their job isn’t to “seek convictions” do little encourage them to fulfill their Constitutional obligation.

The only incentive – financial loss – was vilely struck down by SCOTUS in a decision (Harry “I’m the singer’s father” Connick v. Thompson) authored by Justice Thomas (who, in the words of one commentator, just doesn’t give a fuck). And Thomas seems to have a 20 year love affair with the crooner’s father, as evidenced by his joining the dissent in Kyles v. Whitley, another case highlighting the failure of Connick’s office to turn over exculpatory material, the aforementioned Connick v. Thompson, and his lone dissent in yesterday’s Smith v. Cain [PDF] – another Connick special.

Smith was about the prosecutor’s failure to turn over police notes that significantly undermined the testimony of the only witness against Smith. From this Slate article:

notes from the detective stating that the eyewitness said on the night of the murder that he “could not … supply a description of the perpetrators other then [sic] they were black males.” Again, five days after the crime, the ostensible eyewitness said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The detective wrote these statements down—and then wrote down “Could not ID.” It’s understandable that the eyewitness was, as he later said, “too scared to look at anybody” under the circumstances. But usually police know that a person who didn’t see a face is not an eyewitness at all.

And this was a “witness” who went on to testify with absolute conviction that Smith was, indeed, the perpetrator and he’d seen him face to face. Perhaps recognizing, albeit not acknowledging, that there may be such a thing as a Connick special, SCOTUS took cert. soon after Thompson and in brief, terse and matter-of-fact 4 page 8-1 opinion summarily reversed Smith’s conviction.

8-1. A lone dissent. Thomas authored a 17 page dissent extolling the virtues of eyewitness testimony and the jury’s function of determining the reliability of that testimony. Garbage. He knows it, I know it, his four conservative colleagues on the bench know it and don’t you fall for it. A jury can, I suppose, effectively evaluate the reliability and believability of a witness’ testimony, but only if that jury has all the relevant information before it from which to reach that conclusion. Hiding the fact that the only witness had several times claimed that he could not ID anyone hardly seems non-material.

That Thomas continues to ply this nonsense is not a testament – nor should it be – to the decline of the value of The Court, but rather a telling indictment of his abandonment of any modicum of intellectual honesty. In other words, he just doesn’t give a fuck anymore. Unfortunately, in doing so, he is fast making his presence on the Court a joke and, in the process, devaluing the institution.

————-

A day after the Court issued Smith, it issued Perry v. New Hampshire [PDF], a case that had incorrectly been called the next step in the development of eyewitness identification jurisprudence. The issue in Perry was far more limited and not a review of lineup procedures in of themselves. Here‘s a nice article by the same fellow who wrote the Slate piece above on the juxtaposition of the two cases.

 

 

The Barney Fife exception: all in good faith

The Constitution requires that criminal defendants be provided with a fair trial, not merely a “good faith” try at a fair trial. Respondent here, by what may have been nothing more than police ineptitude, was denied the opportunity to present a full defense. That ineptitude, however, deprived respondent of his guaranteed right to due process of law.

Those, of course, are the (somewhat) famous opening lines to Justice Blackmun‘s dissent in Arizona v. Youngblood, which held that in order to affect due process of law, law enforcement’s actions in destroying potentially exculpatory evidence must be caused by some “bad faith”. The Court, of course, never explains “bad faith”, which results in a race to the bottom to designate all police misconduct as “incompetence” and “inadvertence”, thereby circumventing the Fourteenth Amendment.

Consider, for your entertainment, the very recent case of Martin v. The State of (Where Else?) Texas. In Martin, the defendant was pulled over by Deputy Fife Jennings for failing to signal a left turn. Upon approaching the vehicle, the Deputy smelled “marihuana” and then observed a furtive gesture which led to a patdown, which led to the Deputy feel something like a razor blade (wait for it) which led to the discovery of marihuana methamphetamine (don’t even ask). Martin, within two weeks of his arrest, sent a subpoena to the police department, asking them preserve the video of the dashboard camera. A year later, at the suppression hearing, there obviously was no video, or I wouldn’t be writing this post. Here’s a summary of the police procedure and operation of the dashcam:

The dashcam is automatically activated when an officer turns on his emergency lights. Department policy states that all video must automatically be saved for thirty days. Jennings could not say whether his machine was operating that night, but he would have noted either at the beginning or end of the shift if the device had not been functional. Jennings stated that the only way to know for sure if the video had been taken would have been if he had preserved the video.

And why did no one know if there was video and why did Jennings not preserve it to find out if the incident had been videotaped? I’ll let him tell you:

Conviction by cuteness

Back in 2009, when I first stumbled across the website (and service) Courthouse Dogs, I was merely amused, thinking in my ’09 naivete that this was such a silly preposterous proposition that it wouldn’t have any legs (let alone 4) and would go away without as much as a woof. Boy, did I bark up the wrong tree (you’re permitted to groan now).

It turns out that this is now a growing trend of sorts and is about to receive its first serious legal challenge in the Empire State:

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.

The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.

The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause.

There are Confrontation Clause implications, to be sure: the dog’s “nudging” the reluctant witness at key moments seems to give the witnesses testimony an added air of credibility and evoke lord knows how much sympathy in the jury for the complainant:

His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin added.

Ah, but if Mr. Martin had bothered to check the website for Courthouse Dogs, he’d have found this:

The obscenity of risk of injury

Connecticut General Statute 53-21 states, in relevant part:

a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child

is guilty of “Risk of Injury to a Minor”. A conviction under subsection (1) is a Class C felony carrying a maximum prison term of 10 years and a conviction under subsection (2) is a Class B felony, carrying a maximum prison term of 20 years.

The motivation behind the enacting of this statute is noble:

The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.

State v. Payne, 240 Conn. 766. Yet the statute is so poorly worded and generally vague, that it has required years upon years of judicial interpretation and gloss to enable it to pass Constitutional muster:

We then proceeded to review the general features of § 53-21, noting that, “on its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of [Schriver was] permitted or prohibited. ‘Any act’ may violate the statute so long as it is ‘likely to impair’ a minor’s health or morals. Standing alone, the phrase ‘any act’ provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. . . . Nor is the focus of the statute measurably narrowed by the phrase ‘likely to impair.’ In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.” (Citations omitted.) Id., 461-62. After observing that other jurisdictions had deemed similar statutes unconstitutional, we concluded that, “in like fashion, § 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. . . . [Consequently], the constitutionality of § 53-21 depends upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” (Citation omitted.) Id., 462.

Although the risk of injury statute was amended in 1995 to forbid expressly the sexual and indecent touching of intimate parts, the more general statutory language that proscribes an “act likely to impair the health or morals of . . . [a] child,” in subdivision (1) of § 53-21, has remained unchanged since this court’s decision in Schriver. Compare General Statutes § 53-21 (a) (1) with General Statutes (Rev. to 1987) § 53-21. The passage of time alone has not cured the facial vagueness of § 53-21 (1), nor has it altered the need to adhere to constitutional principles of due process of law in the application and enforcement of that statute. Cf. State v. Schriver, supra, 207 Conn. 459-61. Thus, the constitutionality of § 53-21 (1), as that statute is applied in any given case, continues to depend predominantly “upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” Id., 462. In order to render § 53-21 (1) constitutionally viable, the decisions of this court must state with reasonable particularity the conduct that is proscribed by that statute.

State v. Robert H. The extent to which the Connecticut Supreme Court has gone to save an admittedly infirm statute is staggering. A statute that, upon fair reading, gives notice that a very limited set of actions are proscribed, has been judicially expanded to cover every perceived slight against a minor that a prosecutor with an infertile imagination can be counted upon to summon.

But that’s not my particular peeve with this statute and its judicially emboldened meaning. My grudge lies with the (lack of) meaning of the all-too-important phrase “likely to impair”.

The objection’s on the other foot

An interesting and ironic-chuckle-inducing opinion from the Colorado Court of Appeals (via Volokh), where the trial court granted a mistrial in a criminal case. The defendant had been charged with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace.

As some of these prosecutions go, there was a defense. The defense was basically that the wife was a liar and would do anything to gain leverage in a contentious custody battle involving the couple’s infant son.

At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would “do anything,” including making false claims against defendant, to keep custody.

The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings. The prosecution objected – stating “we’re here on a criminal trial not on the divorce case” – but the court overruled the objection and allowed this line of questioning to continue. While allowing defense counsel “a little bit of latitude” in this area, the court did urge counsel to “cut to the chase.”

Further questioning established that the wife had taken the couple’s son when she left defendant (before the nightclub incident) and the courts were deciding custody. Two questions followed:

Q. You know that [defendant] is from Africa?

A. Yes.

Q. You know that if he is found guilty of this he’ll be deported? The prosecution objected before the second question was answered, stating it was “completely improper to bring that up in this proceeding.” The court promptly ordered a recess.

Outside the jury’s presence, the prosecutor moved for a mistrial. He argued the jury had been “irrevocably tainted” by questioning that was “a ploy to invoke sympathy for the defendant” and amounted to “probably the worst violation [he had] ever seen.” Defense counsel responded that the question went to the “heart of our defense” and defendant was constitutionally entitled to ask it. Counsel proffered that she had spoken with defendant’s immigration attorney, that this assault conviction would lead to deportation, and that the wife “knows all of that.”

The trial court then granted the prosecutor’s motion for mistrial (yes, I did not type that incorrectly), while “vehemently disagreeing” with defense counsel (seems that this judge has learned from my tips for objections).

Junk “science” and missing evidence

Add a gallon of destroyed evidence to a tubful of junk science and what do you get? Another man set free. Philip Scott Cannon was released from prison Friday after serving 10 years for a triple murder. Note that I have not yet used the term exonerated – and that’s for a reason. We don’t know if he is truly innocent and we will never know. That’s because the police in Polk County, Oregon destroyed all the physical evidence they had collected during their investigation, despite a county policy.

Cannon’s conviction was overturned in the first place because it had been based on the now debunked “comparative bullet lead analysis”, that the FBI distanced itself from in 2005 after another NAS report in 2004 called bullshit on the “science” [not to be confused with the NAS report that this year called bullshit on a whole bunch of other "forensic science tools" and other tales of "junk science"].

In 2004, after the NAS report but before the FBI disavowal, NACDL’s Champion published this lengthy piece on CBL and its flaws. And then in 2007, the Washington Post had this article questioning the FBI’s failure to alert courts and lawyers of their distancing themselves from CBL and the closing window on the possibility of reversing questionable convictions.

Polluting the jury pool

In today’s hyper connected world of 24 hours news and in-your-face social media that tweets breaking information before you have time to read it, one of the great concerns among legal professionals is keeping the jury pool free from pollution. As information is more widely and easily available, more and more people are becoming intimately aware of details of even routine criminal cases in their towns.

This presents an added challenge in weeding out those potential jurors who’ve already heard about a case and who might have made up their minds about the guilt or innocence of a defendant. The core right, of course, is the right to trial by an impartial jury.

But there’s another concern, one that not many pay attention to or can do much about: and that’s the post-verdict informational session usually conducted between the judge and the jury. This has happened after every trial to verdict I’ve been a part of: the judge slips into the jury deliberation room, chats with the civic minded people who’ve just discharged their important duty and proceeds to give them the dirty details of the case (and occasionally to answer questions).

Invariably, this discussion comes around to the defendant. And when discussing defendants, there’s nothing juicier than discussing a defendant’s criminal history. The jurors, besotted by curiosity, may ask questions about the defendant – to know what kind of person the defendant is: has he done this before? Does he have a record?

Some judges may choose to ignore such questions and some may not. Some public defender wrote in to the Legal Ethics Forum to ask that very question: what do you do with a judge who reveals the defendant’s criminal history to jurors post-verdict?

This past summer I tried a criminal case in federal court.  After the guilty  verdict  but  before  the jurors were dismissed, the district court judge told them about my client’s prior bad acts.  I would like to write an article  and  argue  that  this is wrong because it damages the future jury pool.   If  it cannot be done in Texas state courts, why should the federal courts  be  any different? Could you tell me of any articles or periodicals dealing with this issue?

Face-to-ski mask: a defendant’s right to confront his cat burglar

Do you feel lucky?

Do you feel lucky?

I’m not quite sure how to introduce this story (and the case that it covers) in a pithy manner, so I’m just going to get to it: New Hampshire’s Supreme Court recently ruled that it’s okay for a police officer to testify at a criminal trial while wearing a ski-mask to protect his identity because he was working in an undercover unit at the time of the trial.

Yes, you read that right. In State of New Hampshire v. Jose Hernandez, a police officer who had conducted an interview with the complaining witness was permitted to sit there like a cat burglar, with a ski mask on his face. The State’s reasoning – bought by the trial court – was that the officer’s identity needed to be protected. Nevermind the fact that the jury viewed the interview with the complainant in which his face was uncovered and that everyone knew his name. Oh and that pesky Confrontation Clause thing.

Let’s look at that. The Confrontation Clause provides that:

In all criminal prosecutions, the accused shall enjoy the right to [...] be confronted with the witnesses against him.

Federal court decisions have interpreted this to mean eyeball-to-eyeball confrontation. The confrontation clause affords the criminal defendant two types of protections: “the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39 (1987). And there’s a reason for this. The accuser, or any other witnesses on the accusers behalf, should have to face not only the defendant, but the jury that is deciding the defendant’s fate. The jury should have the opportunity to observe the witness and the witnesses reactions and demeanor.

The Connecticut Supreme Court has not yet considered (that I could find) whether a witness testifying in disguise violates the Confrontation Clause. It has, however, considered whether an accuser can testify outside the presence of the defendant and not in court. In State v. Jarzbek, the Court permitted the videotaping of a minor who had accused the defendant of sexual abuse. While the court in Jarzbek ultimately permitted the introduction of videotaped testimony instead of live testimony at the trial, the jury had the opportunity to observe the demeanor of the complainant. Jarzbek, however, emphasized the importance of having the ability to look the accuser (or by extrapolation a witness) in the eye and having that witness face the jury:

Texas kills…..an innocent man? (updated)

The first half of the title of this post (shamelessly plagiarized from our good friends at CapDefWeekly) should come as no surprise to anyone. Texas is a powerhouse when it comes to executions, rapidly putting people to death.

The second half of the title should also come as no surprise, though. And there’s a new report to back it up [here's a link to the actual report]. The man in question is Cameron Todd Willingham, convicted of setting fire to his house that killed his children in 1991. The new report states that Texas fire marshals had no basis to conclude that the fire was set intentionally and in all likelihood was an accident. Willingham was executed in 2004, maintaining his innocence to the end.

Among [Craig] Beyler’s key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams’ house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham’s injuries could not have been caused as he said they were.

The state fire marshal on the case, Beyler concluded in his report, had “limited understanding” of fire science. The fire marshal “seems to be wholly without any realistic understanding of fires and how fire injuries are created,” he wrote.

The marshal’s findings, he added, “are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

And it isn’t Beyler alone. Nine of the nation’s top fire scientists reviewed the Willingham case and concluded that “the original investigators relied on outdated theories and folklore to justify the determination of arson.”

And that’s not all. There was some other evidence of his guilt: jailhouse snitch testimony. That doyen of reliable information. To paraphrase Radley Balko, junk science and a jailhouse snitch do not a reliable conviction make.

Good job Texas. Good job death penalty advocates.

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