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:

Sanctioning misconduct

In a system that is built on accountability, the punishment for violations of accepted standards is notoriously one-sided. Defendants, almost exclusively, are the ones penalized for failing to conform their behavior to the standardized and socially accepted norms. With good reason, obviously. But the criminal justice system isn’t a one-team sport: there are also judges and prosecutors. And all participants in this game are guilty of misconduct, albeit less frequently. Yet the ratio of transgressions to punishment is inexplicably lopsided when it comes to rule-breaking by officialdom. Courts that find “prosecutorial misconduct impropriety” rarely, if ever, impose punishment.

I wrote almost a month ago about the CT Supreme Court’s extraordinary decision in State v. Patrick Lenarz, in whose case the prosecutor received, read and utilized at trial confidential documents from the defendant to his attorney. The Lenarz case is remarkable not only for the strong language in the decision, but the fact that the Court was so troubled by the actions of the prosecutor that it ordered Lenarz released back in November, after oral argument. In fact, the Court found that the violation by the prosecutor was so egregious that it ordered that the prosecution be dismissed.

But still, this is a prosecutor we’re talking about. The Court doesn’t bother to name the offending prosecutor in its decision, but if you know how to read CT appellate opinions, you know that the last prosecutor listed in the “credits” is usually the prosecutor who handled the matter at the trial court. It is a rather tiresome feature of our appellate courts that they will not hesitate to name defense counsel when evaluating claims of ineffective assistance of counsel, but when it comes to conduct by a prosecutor that is “extremely troubling”, they still cannot bring themselves to put the name down in print, even though the significance of the prosecuting arm of the state using illegal and unethical measures to secure convictions against the citizenry is something far more egregious and dangerous.

But I digress.

State forensic lab under scrutiny

The Connecticut State Police Forensic Science Laboratory, once considered among the best, most independent and most efficient in the country, is now facing some serious scrutiny by the NIJ, an arm of the Feds. Norm Pattis wrote about this two days ago and it got picked up by the Courant yesterday. Some of the problems facing the lab are well known to those dealing with them on a regular basis: they are severely understaffed, have an astronomical backlog of cases and even had to deal with some expired DNA kits over the last two years, which, while they did not lead to false positives, surely took up some time with re-testing.

But this is much worse. Apparently there’s a 160 page report of the audit done by the NIJ which criticizes several aspects of the lab’s operations, including the qualifications of the supervisors and the ability to adequately and accurately process and examine the evidence:

The audits focused on the sections of the lab that deal with convicted-offender databases and DNA testing. State crime labs must adhere to federal standards for DNA testing.

The DNA audit team raised questions about supervision, reporting of case results, evidence control, data security, quality assurance, adherence to standard operating procedures for DNA analyses, and validation techniques for DNA test results, among other issues.

These are significant questions that undermine the reliability of DNA results, which are often used by juries as the be-all and end-all of proof beyond a reasonable doubt. DNA evidence is the gold standard, considered fool-proof and error proof, in the minds of the layperson. To have a report that calls into question basic things like evidence control, quality assurance and even SOP for analyses is troubling, to say the least.

How accurate are the results reported by the lab over the last few years? How many cases did this affect? How many convictions were obtained on the strength of these criticized standards and procedures? The implications are staggering.

The state lab didn’t provide the Courant a copy of the report of the NIJ, but every criminal defense lawyer must send a letter to the lab requesting that unedited copy. What exactly does it say? We need to know that, unfiltered, without the alterations and suggestions of the state.

I know several of the people who work at the state lab and I like most of them. I don’t envy them right now, because it seems that a lot of these problems are brought about by severe underfunding. But whatever the reason, the credibility of the lab and its results is now in question and that’s not a good thing – either for the lab itself – or for the people who have been convicted or are awaiting trial as a result of the lab’s testing.

And if you’re waiting for DNA results in your case, you may have to wait a long, long time. From this graphic in today’s paper edition of the Courant, the backlog for DNA testing and analysis is now 4 years!

Last March, a state police official briefed the Criminal Justice Policy Advisory Board, made up of police, prosecutors and a cross-section of members of the public.

The facts were alarming, [chief of criminal justice planning for Gov. Dannel P. Malloy, Mike] Lawlor said: 3,900 “unstarted” forensic cases; 1,800 backlogged firearms cases as of March, up from fewer than 800 in January 2009; statutory deadlines looming in more than 160 felony cases.

“There have been outrageous backlogs with the processing of evidence – DNA, fingerprints, computer hard drives, everything,” Lawlor said. “Police in some cases have had to wait months, sometimes a year or more, for results, and that has affected decisions on arrest and identifying suspects. It’s also delayed trials. It’s been a problem for police and prosecutors statewide.”

Lawlor, ever the prosecutor, forgets one important demographic: the criminal defendant. He who is innocent until proven guilty, but more often than not cannot afford to post bail and thus sits in pre-trial incarceration for months and years pending the outcome of DNA testing. This is as much about solving cold cases and identifying suspects through DNA analysis as it is about the speedy resolution of those cases where people are deprived of their liberty based on questionable policies and procedures at the state lab. If nothing else, we should all start filing motions for bond reduction in cases where DNA analysis is outstanding and will take forever.

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:

CA: Snitching requires corroboration

In a long overdue move, Gov. Jerry Brown of California just signed into law SB 687, which bans judges and juries from convicting defendants based solely on the uncorroborated testimony of jailhouse informants. From the bill itself:

This bill would additionally provide that a judge or jury may not enter a judgment of conviction upon a criminal defendant, find a special circumstance true, or use a fact in aggravation based solely on the uncorroborated testimony of an in-custody informant, as defined. The bill would provide that corroboration shall not be deemed sufficient if it merely shows the commission of the offense, the special circumstance, or the circumstance in aggravation. The bill would provide that the corroboration of an in-custody informant shall not be provided by the testimony of another in-custody informant.

This is a major step forward in the fight against unreliable and wrongful convictions. Jailhouse snitch testimony has obvious problems, which have been chronicled here before, and in fact, this bill is identical to one passed by the California legislature in 2008, only to be subsequently vetoed by the Governator. Despite opposition from some prosecutors offices, Gov. Brown made this requirement the law of California and for good reason. This survey [PDF] from the Center for Wrongful Convictions at Northwestern Law School found that fully 48% of wrongful convictions were brought about by jailhouse testimony. The Innocence Project states that 15% of DNA exonerations were in cases of convictions that featured snitch testimony. Here’s a Pew Trust report [PDF] on the problems with this kind of testimony.

Surprisingly, California now becomes only the 18th state to enforce this kind of prohibition. Most other states take a half-hearted approach, like Connecticut, providing only for a “special” jury instruction warning juries to consider this kind of testimony skeptically. From the model jury instructions:

Generally, the court should not instruct the jury on the credibility of a particular witness, but the Supreme Court has recognized three exceptions:  the complaining witness, an accomplice, and an informant.  See State v. Patterson, 276 Conn. 452, 470 (2005); State v. Ortiz, 252 Conn. 533, 561-62 (2000).

The exception for informant testimony was first recognized in State v. Patterson, 276 Conn. 452 (2005).  “Because the testimony of an informant who expects to receive a benefit from the state in exchange for his or her cooperation is no less suspect than the testimony of an accomplice who expects leniency from the state, we conclude that the defendant was entitled to an instruction substantially in accord with the one that he had sought.”  Id., 470.  Though originally limited, in Patterson, to informants who had actually been promised a benefit in return for his or her testimony, in State v. Arroyo, 292 Conn. 558 (2009), the Court expanded it to any informant.  “[T]he trial court should give a special credibility instruction to the jury whenever [jailhouse informant] testimony is given, regardless of whether the informant has received an express promise of a benefit.”  Id., 569.

If the testimony is so inherently unreliable, then courts and juries should be prohibited from relying solely on such testimony to convict people. But that, I suppose, is a matter for the legislature and not the courts.



A Cronic problem

too soon?

Lawyers, despite what some would have you believe, are people too. We eat, we breathe, we cry, we laugh and we sleep. And there’s nothing wrong with that and there shouldn’t be. Except that last one – sleep – specifically if a lawyer decides that the cross-examination of his client, in front of a jury, is the perfect opportunity to catch a few winks.

Sleeping lawyers have been mentioned on this space before [and elsewhere], so I would be remiss in not pointing out the latest escapade of one who allegedly decided to shut his eyes for a few minutes during that oh-so-unimportant part of a criminal trial. This one comes courtesy of the 6th Circuit (and via Volokh) in Muniz v. Smith [PDF], in which Muniz alleged through the sworn affidavit of a juror that his attorney was, in fact, asleep.

I won’t bother with the facts of the case or the outcome, because both are quite obvious: there is no presumed prejudice under Cronic because there is no record that the lawyer was asleep for a substantial portion of the trial and there is no Strickland violation because goshdarnit Muniz was overwhelmingly guilty.

But the Court’s perfunctory analysis of the issues raises a greater problem: what is it that we expect of lawyers in our criminal justice system? Why is it acceptable for a lawyer to be asleep for even as little as a minute during a criminal trial?

In Cronic, SCOTUS said:

I know it when I see it


Finally, my favorite subject: pornography. Everyone has to have heard of Justice Potter Stewart’s words which form the title of this post, written in a concurrence in Jacobellis v. Ohio, on the issue of “obscene” videos. And almost no one knows what it means. After a flurry of decisions in the 1960s and 70s (Stanley v. GA, Smith v. CA, Miller v. CA, Jenkins v. GA) attempting to define exactly what is obscene and what is protected and just who can be prosecuted with and ending up with a mess of a Constitutional doctrine, the Supreme Court – and the general American public – seem to have given up on pornography altogether. No one really cares anymore and there’s hardly ever a prosecution for the production, sale and possession of adult pornography.

Unless you’re a sex offender on probation, of course. Enter Robert Stephens. Stephens was convicted of possession of child pornography and as part of his sentence, was placed on probation. Some of his conditions were as follows:

One of the seven special conditions was that the defendant’s access to any computer must be approved by the office of adult probation. Among the special  sex offender conditions were that the defendant (1) not possess, or subscribe to, any sexually stimulating material deemed inappropriate by a probation  officer, (2) not possess a camera, DVD player, camcorder, videocassette recorder or other similar equipment without the approval of a probation officer, and  (3) submit to an examination and search of his computer or other similar equipment to verify that it was not being utilized in violation of his probation or  treatment.

Note that the condition isn’t “obscene” material, but rather “sexually stimulating material deemed inappropriate by a probation officer”. More on that later.

As is the natural course of events for sex offenders, he was found in violation of his probation for having a few nude photographs of his ex girlfriend and duly sentenced to 42 months in prison. He appealed, claiming that the condition: