evidence

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.

Oh you ungrateful defendants!

If there were a job where the only requirement was to give pithy (sometimes catchy, but usually poor) titles to Connecticut Supreme Court decisions, I would take that job and assign the title of this post to State v. Sanseverino (II), issued yesterday. Sanseverino II is a very curious decision of the State Supreme Court.

Because, you see, it is the Mighty Defendant who has the power of soothsaying. The meeky and tiny state cannot be taken advantage of, fooled or otherwise made to lose a conviction, no matter what the circumstances.

Avid and attentive readers of this blog will remember that last year, the CT Supreme Court issued a duo of decisions reversing course on decades of kidnapping law. In State v. Salamon and State v. Sanseverino (I), the CtSC ruled that the law of kidnapping was always that the State must show the use of force greater than that required for the commission of another crime and that they’d gotten it wrong for 30-odd years. For example, a kidnapping conviction couldn’t stand alongside a sex assault conviction where the only “restraint” was that required to commit the sex assault. Mr. Salamon got a new trial and Mr. Sanseverino got an outright acquittal. In doing so, the Court wrote:

It depends on what “unlawfully remains” means

IMG_0625

Lookin' goooood!

So the other day, I went to Miranda’s house. While there, I noticed she had a new iPod Nano. The thing looked damn good. So I thought I’d get myself one. Then I remembered that I was a public defender and I didn’t make much money. So I started thinking. What if I took it and didn’t tell her? What if I took it and didn’t return it? What if I took it and then I thought better of it and put it back, all without her knowing?1

What crime would I be guilty of? (Yes, I am that nerdy.)

There is an easy answer and a difficult question. The easy answer, of course, is Larceny in the Sixth Degree, a C misdemeanor. The difficult question, however, is whether I am guilty of Burglary.

The burglary statutes have several common elements. Judging by the title of this post, you know which one I want to focus on. Here’s the entire Burglary 2nd statute:

Depends on what “actually present” means

Last year, in the wake of the Cheshire murders, the legislature got it into their heads that our current Burglary statutes weren’t sufficient to prosecute the act of a home invasion1. While not true, they felt there had to be some response to the murders and as a result, passed the home invasion statute.

There isn’t much difference between the Burglary statute and the “home invasion” statute. But let’s take it one step at a time. Here are the elements of the home invasion statute:

  1. A person
  2. Enters or remains unlawfully
  3. In a dwelling
  4. While a person other than a participant
  5. Is “actually present” in that dwelling
  6. The “offender” has the intent to commit a crime
  7. AND
  8. In the course of committing “the offense”
  9. either commits or attempts to commit a felony
  10. against “the person” of 4 & 5 above
  11. OR
  12. the “offender” is armed with explosives or a DW or a DI
  13. “course of committing” is either an act or attempt
  14. or in flight thereafter.

More, including a poll, after the jump.

When is an assault not an assault?

When it’s a strangulation. Yes, as of 2008, the Connecticut legislature has created the crime of “Strangulation” (I’d link to it, but it isn’t up on the website yet).

Is it redundant? What does it really mean? Let’s find out! The first step, of course, is to conduct an elements analysis. There are two degrees of strangulation, both felonies. Let’s start with Strangulation in the First Degree:

(a) A person is guilty of strangulation in the first degree when such person commits strangulation in the second degree as provided in section 53a-64bb and (1) in the commission of such offense, such person (A) uses or attempts to use a dangerous instrument, or (B) causes serious physical injury to such other person, or (2) such person has previously been convicted of a violation of this section or section 53a-64bb.

Huh? Okay, let’s look at Strangulation in the Second Degree (53a-64bb):

(a) A person is guilty of strangulation in the second degree when such person restrains another person by the neck or throat with the intent to impede the ability of such other person to breathe or restrict blood circulation of such other person and such person impedes the ability of such other person to breathe or restricts blood circulation of such other person.

Here’s what I don’t understand. How do you commit strangulation in the second degree without using a “dangerous instrument”? Especially in light of the fact that hands (or fists or feet or limbs) may be “dangerous instruments”:

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