Expert bullshit

From an unpublished Mass opinion1, consider the following description of the testimony of the state’s “expert” witness – a police officer and decide whether it was admissible or not:

First, referring to the cocaine and its packaging, the prosecutor asked [Detective Paul] Quinn whether he could offer an opinion as to whether ‘someone possessed these with an intent to distribute, or if they had it for personal use?’ In response, Quinn stated, ‘My opinion based on this in front of me and nothing more would be it would be with the intent to distribute it.’

[Second,] Quinn testified, ‘You know, if I stopped a guy who had nine bags, and he pulled out a burnt pipe and said, Officer, I just got paid, I’m going to get high, and he had those physical characteristics along with the pipe, I might give that guy the benefit of the doubt . . .

[Finally] Quinn [testified] regarding the physical characteristics and economic behavior of typical crack cocaine users, suggesting that the heavy-set defendant looked like a seller not a user and that a user would want to get his ‘money’s worth,’ and therefore would buy an ‘eight ball’ not nine twenty-dollar bags.

In this case, the court ruled that all of this testimony was improper and went beyond the scope of his “expertise”2.

But how similar is this testimony to others that you see routinely in drug trials? How many times has testimony like this been admitted, relied upon and upheld? How many times is a cop an “expert” based solely on nothing but his own inflated sense of his own abilities?

If you are a juror in a trial and a cop testifies as an “expert”, feel free to ignore that testimony and substitute your own common sense instead. Because usually they testify about bullshit like this.

The lesson is that people are always guilty, even if they’re not.

David R. Cameron, distinguished professor of political science at Yale and a member of the State of Connecticut’s Eyewitness ID Task Force has written one of the most incomprehensible and bizarre opinion columns in the New Haven Register.

The feeling I got after reading that column is similar to the feeling I get after reading briefs written by the prosecution: one struggles for a sizeable chunk of time with where to start in response. As my favorite law professor used to say: it’s not even wrong.

Cameron uses three recent trials in New Haven Part A to illustrate the lesson that more evidence of guilt is better for conviction than lesser evidence of guilt and that without such additional evidence, guilty people will be found not guilty.

No, I’m serious.

Cameron tells us the tale of three trials conducted in recent months, all of which resulted in either acquittals or mistrials. He starts off by presenting unfiltered pro-prosecution evidence in each case:

In October, a jury found Jermaine Scott, 33, not guilty of murdering Marquise Baskin, 26, on June 19, 2010, in a parking lot behind Winchester Avenue. It did so despite the fact that a relative of Scott’s who had taken care of him since he was a child told police in a taped interview that she saw him in the parking lot with a gun, saw flashes of gunfire and heard gunshots.

In November, a jury found Tyrick Warren, 20, not guilty of conspiring with Rajoun Julious to rob John Henry Cates, a 57-year-old homeless man who was murdered on Jan. 3, 2010, near the corner of Huntington and Newhall streets. But it was unable to reach a unanimous verdict on the charges of felony murder and attempted robbery, despite a taped statement in which Warren implicated himself in the crime. The judge declared a mistrial.

And a week ago, Superior Court Judge Jon C. Blue granted a defense motion for acquittal in the trial of Kenta Wilson, 22, for the murder of Timothy Mathis, 25, on Sept. 3, 2011, in a parked car on South Genesee Street on the grounds that the state had not proved its case beyond a reasonable doubt. The motion came after a prosecution witness, Alfonso Dixon, refused to acknowledge that he told the police that several days after the shooting Wilson told friends he shot Mathis. Dixon was sentenced to six months for contempt of court.

He then goes through the rest of the evidence, essentially arguing that there were very good reasons why each judge or jury could not and did not convict the defendant. He boils down the similarities in each to:

But in all three, the prosecutors relied heavily upon a taped statement by an eyewitness, the defendant himself or an acquaintance that unambiguously implicated the defendant only to have the eyewitness, defendant or acquaintance subsequently recant, claim the statement was made under pressure, or refuse to acknowledge having made it.

Just in case you weren’t clear, he doesn’t believe any of this eyewitness recantation pressure nonsense, because clearly no one’s ever falsely confessed or misidentified the perpetrator. It’s understandable that a lay professor isn’t up on wrongful convictions across the country. It’s not like he’s on a task fo-oh.

And then he makes this really absurd conclusion:

However persuasive such statements may sound at the time to investigators and however useful they may be in demonstrating probable cause, they are quite likely to be recanted or otherwise denied later on at trial, especially if they were made by someone who is related to or acquainted with the defendant or by the defendant himself.

It is the fact of kinship that causes recantation, not the possibility that the statement may itself have been obtained under coercive circumstances. Cameron completely ignores this possibility again, so he’s either drunk or trolling everyone with this.

And let’s not forget the lesson he wants the good guys to learn from this:

That means investigators and prosecutors need to realize that judges and/or juries will usually need some corroborating evidence — ideally, forensic evidence — in addition to such statements in order to prove guilt beyond a reasonable doubt; probable cause isn’t enough.

I don’t even know where to start. What is he saying? That confessions aren’t enough because they’re only probable cause, and probable cause is not proof beyond a reasonable doubt?

That prosecutors should “find” some physical evidence because without that murderers and killers are going to go free because they can simply magically say they didn’t do it and juries are so stupid that they automatically believe all recantations?

I’m sorry this post is so rambling, but I literally do not know how to comprehend and deconstruct the vast amount of stupid that is this opinion column.

Wouldn’t it have made more sense for his opinion column to be about reminding prosecutors and police that they should only pursue cases in which there is proof beyond a reasonable doubt and to not try to convict people who are quite apparently not guilty?

That’s not what he writes, though, because surprisingly for someone who comes from his position, he too is of the all too common mindset that once police and prosecutors arrest someone, we have full faith that they’ve got the right person and all that’s left is a matter of meeting the ministerial burden of proof BRD and any prosecution that fails to meet that pro forma hurdle is a victim of cheating, dishonest witnesses and incompetent juries and “liberal” judges.

Never once does he demonstrate the understanding that maybe, just maybe, in each instance the verdict was the just one and the only one that upheld the integrity of the legal system.

But shit like that doesn’t get you on task forces now, does it?

 

TX man thinks he’s better than the TN public defender system

First, in Texas, a man was charged with multiple murders and the prosecutor is deciding whether to seek the death penalty. In that case, his lawyer is a kid named Maverick Ray1. Mark Bennett has this to say about Ray:

The cal­low­est young lawyer puts up a web­site in which he calls him­self “The Law Offices of Mav­er­ick Ray” (he has one office), “An Expe­ri­enced Hous­ton Sex Crimes Lawyer Your Free­dom Can Depend On” (he has been licensed for less than eight months and been hired on one felony sex case), “the Assas­sin of Sup­pres­sion” (Har­ris County records show no granted sup­pres­sion motions in drug cases), “Houston’s pre­mier DWI Attor­ney” (I won­der what Gary Trichter or Troy McK­in­ney, or Lewis Dick­son, to name but three of Houston’s top DWI lawyers, with decades of expe­ri­ence each—[edit: not to men­tion Tyler Flood]—would have to say about that), “often opt­ing to let a jury deter­mine whether some­one was truly intox­i­cated rather than the highly flawed Field Sobri­ety Tests, Breath Tests, or Blood Tests” (Dis­trict Clerk records do not show him try­ing a sin­gle DWI case in Har­ris County dur­ing those eight months).

Maybe all of this can some­how be ratio­nal­ized in a cal­low young lawyer’s mind, but it just isn’t true. Mav­er­ick is a nice kid, but I think he’s com­mit­ting large-scale fraud on poten­tial clients. Even if it’s fac­tual, it’s decep­tive. I am sad­dened and dis­ap­pointed, and I see no way for this to end well for him.

But—for now at least—it works. Ray gets at least three new cases a week on aver­age, mostly felonies. I don’t know how much he’s charging—whatever it is, it’s too much—but it doesn’t take big fees to turn 94 cases in a lit­tle over seven months into seri­ous money.

Walker County District Attorney David Weeks, the prosecutor who’s deciding whether to seek the death penalty, has this to say about Mr. Ray:

Weeks also challenged the defense attorney’s qualifications to try a capital case Friday morning. Ray has only been out of law school for six months. There are concerns that his lack of experience hampers Lewis’ right to a fair trial, thus bolstering Lewis’ chance at an appeal if he is found guilty.

Kraemer had appointed a lawyer to represent Lewis who is approved to defend capital cases in Walker County, but Lewis chose to hire his own counsel.

“I am extremely troubled about Mr. Ray’s lack of knowledge and training in taking this case,” Weeks said. “(Capital murder) is the most difficult and integral criminal case we have in this state.”

Mr. Ray’s response – “the defendant has the right to choose his own attorney” is the correct response, but also the wrong, glib response. I’m not sure there’s a single attorney, no matter how talented, in the United States, who is qualified to handle a death penalty case within the first 5 years of practicing as a lawyer.

Meanwhile, in reality:

“Because of the state’s filing of a death motion in this case, our office quite frankly lacks the resources to defend a death penalty case,” [Nashville Assistant Public Defender Mike] Engle told [Criminal Court Judge Randall] Wyatt in court Monday morning.

Engle said the American Bar Association estimates that a typical death penalty case requires upward of 2,000 hours of preparation. He explained that the office only has a few attorneys qualified to defend capital cases, two of whom are already on one case, and one of whom is retiring soon. The others, he said, have supervisory duties over other public defenders, making it impossible for them to take on a case of the magnitude of the one against Jenkins.

The ABA standards for death penalty representation [PDF]2 are lengthy and involved. They require hours and months of training, tutelage and study. They are not to be taken lightly, or glibly.

Mr. Ray seems to be making the same mistake that most attorneys who aren’t that sure of themselves make: acting too sure of themselves. The best ones will admit what they know and don’t know and the best new ones will recognize this early on.

It’s one thing to tout yourself as the “premier DUI lawyer” only 6 months out of law school. It’s quite another thing to take on the defense of a death penalty case. Even if it is Texas.

Update: Tornado Mark, in his gentle, kind way is soliciting advice for the Maverick in re: his capital representation. Be sure to add your two cents.

Because even children aren’t as important as convictions

I have written before that despite the successes being touted by the criminal justice head honchos here in Connecticut, we still treat our children differently when it comes to those that are alleged to have committed the most serious of crimes.

According to law in Connecticut, anyone 14 and above who is alleged to have committed a Class A (murder, felony murder, arson, kidnapping, aggravated sexual assault) or a Class B felony (sexual assault, robbery 1, assault 1, risk of injury) is automatically transferred to adult court. For instance, in 2012, approximately 209 children between 14-17 had their criminal cases transferred to adult court.

A 2002 study [PDF] commissioned to consider the impact of the 1995 legislation mandating automatic transfers revealed that 36% of all juveniles1 transferred to adult court2 between 1997-2002 were sentenced to incarceration. That equals 141 children in Connecticut who got jail time in adult court, with adult convictions, with adult conviction consequences. That’s 141 too many for me, but those with the authority to change things seem to disagree.

[If anyone has updated statistics, I’d love to see them. Further, if you’re a legislator, request updated statistics from OLR – specifically ask for a breakdown of automatic transfers, discretionary transfers, the ages of the defendants at the time of the commission of the offense and the sentences received.]

But these again, are the people who, had protection of children really been their goal, would have seen it fit to fix a  glaring problem in our General Statutes. In a moment of wisdom that is all too rare these days, our legislature saw fit to enact this legislation:

(a) Any admission, confession or statement, written or oral, made by a child under the age of sixteen to a police officer or Juvenile Court official shall be inadmissible in any proceeding concerning the alleged delinquency of the child making such admission, confession or statement unless made by such child in the presence of the child’s parent or parents or guardian and after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.

That’s a pretty intelligent piece of legislation which seeks to protect a child of a certain age from being subjected to the very adult world of police interrogations without a parent or guardian being present.

Except it doesn’t apply if the case is then transferred to adult court. In 2010, in State v. Canady, our supreme court revisited this issue and a prior ruling in State v. Ledbetter.

In both Canady and Ledbetter, the juvenile defendants argued that they too, should receive the protection of the above statute because it simply doesn’t make any sense that the legislature intended to offer these protections only in situations where the consequences were minimal. Logic dictates, they argued, that children are more deserving of protections like the right to have a parent present and the right to have an attorney present when the consequences expose them to adult convictions and adult jail time and registration as a sexual offender.

You’d think, said the supreme court, but it ain’t so:

The defendant also contends that our interpretation of § 46b-137(a) in Ledbetter is inconsistent with the primary purpose underlying the enactment of that statute, namely, “to provide needed protection to children who are subjected to questioning by the police.” State v. Ledbetter, supra, 263 Conn. at 16, 818 A.2d 1. As the defendant maintains, those rights are no less implicated when a juvenile is tried in criminal court than when he is tried in juvenile court. Nevertheless, as we explained in rejecting the identical claim in Ledbetter, “[w]e agree, of course, that limiting the scope of § 46b-137(a) to proceedings in juvenile court necessarily will deprive some children of the protections to which they otherwise would be entitled under § 46b-137(a). To avoid this result, however, the defendant [in Ledbetter] would have us construe the words, `in any proceeding concerning the alleged delinquency of the child’ … to mean in any proceeding concerning the child. We may not disregard the words `the alleged delinquency of,’ because `[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’

And then, of course, the reality laid bare:

Furthermore, Ledbetter was decided more than six years ago, and the legislature has taken no steps to amend § 46b-137(a) in response to our holding in that case. “[A]lthough legislative inaction is not necessarily legislative affirmation … we … presume that the legislature is aware of [this court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.”

In other words: the legislature could have clarified this mess, but they haven’t, so it’s pretty clear that they don’t think children should have protections against police interrogations if those confessions can be used against them to secure convictions in adult court. Shameful.

Where’s the surprise, though? They are the same people who’ve seen it fit to leave the discretion to save or ruin a child’s life in the hands of prosecutors and only prosecutors. A judge cannot block the transfer to adult court; a judge cannot require that the case be returned to juvenile court and a judge cannot sentence a juvenile to anything less than the law requires.

We all know what happens when prosecutors are  given that sort of unfettered discretion and power. And if you think they won’t flex their muscle just because the defendant is 14 years old, well you aren’t paying attention.

This is all the more puzzling in light of the fact that our legislature has, in certain circumstances, given judges the power to ignore the mandatory-minimum sentences:

The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended, except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years

Why such a clause cannot apply to all juveniles in adult court in all crimes is beyond me. Keep the maximum intact and let a judge decide what the appropriate sentence is in each case.

And why should anyone need to fix these problems, right? It’s not like juveniles who commit crimes can go on and become productive members of society. It’s not like they become social workers or victim advocates or reporters or pediatricians.

It’s not like children are, you know, children.

Unmuting Gideon’s trumpet

Pictured: a trumpet

Pictured: a trumpet

It’s fitting that in this, the 50th anniversary year of Gideon v. Wainwright, a federal judge issues an opinion finally giving teeth to the noble ideal that the indigent must be given access to attorneys paid for by the State and that those attorneys must be competent and able to do an adequate job.

There has been a disheartening trend over the years of state and county systems buckling under the weight of cases, unsupported by the required funding. It is, after all, a rather unpopular thing to fund. The trope that public defenders are overworked isn’t an invention out of whole cloth. Public defenders and assigned counsel aren’t paid enough and are given far too many cases to handle.

Almost invariably, though, when push comes to lawsuit, the state or county loses, because it’s almost indisputable that they’re providing inadequate resources. The latest judge to find the same is Judge Robert Lasnik of the Western District of Washington.

In a lawsuit filed by the ACLU against two cities in Washington – Mount Vernon and Burlington – the judge sided with the plaintiffs finding that [PDF]:

Who’s the people?

smbc-20131203

Did you hear the one about the woman who couldn’t fly to testify at a trial about the government’s “no-fly list” because the government put her on a “no-fly list”?

No? It happened this past weekend, when Raihan Mustafa Kamal, the daughter of the woman suing the Department of Homeland Security – and incidentally a U.S. citizen – tried to board a plane to San Francisco in Kuala Lumpur and was told by Malaysian Airways that the Department of Homeland Security had put her on a no-fly list.

Not an Onion article. I swear.

The Identity Project blog is covering the trial, which kicked off earlier this week with a ridiculous situation, highlighted by BoingBoing. Apparently, one of the people set to testify in the case, Ibrahim’s oldest daughter, Raihan Mustafa Kamal (an American citizen, born in the US), was blocked from boarding her flight to the US to appear at the trial, and told that she was on the no fly list as well. Kamal, a lawyer, was an eye witness to her mother being blocked from boarding her flight. The US knew that Kamal was set to testify and from all indications, in a move that appears extremely petty, appears to have purposely blocked her from flying to the US. Kamal was directly told by the airline that DHS had ordered them not to let Kamal to board. The airline even gave her a phone number for a Customs and Border Patrol office in Miami, telling her to call that concerning her not being able to board.

Just so you understand what’s happening: the Federal government is being sued. The Federal government, in defending that lawsuit, has apparently just blocked the opposite party from providing a witness. It’s as if the state charged you with murder, but you have a rock solid alibi of your family, so on the day your family was going to testify, they took your family and moved them to Guantanamo and then pretended like nothing happened and they didn’t know anything.