Do video lineups lead to accurate eyewitness ID?

That’s what researchers from Royal Holloway University of London Eyewitness Group seem to be suggesting, as per this BBC news story. I haven’t been able to find the actual research paper or its conclusions, but presumably its in the offing. It will be interesting to read and see what the basis for this conclusion is. The current statistics, as per the report, seem pretty dire: only 4 out of 10 witnesses make accurate identifications. For more on eyewitness ID posts on this blog, click here. If you fancy yourself a pretty astute observer, try Gary Wells’ Eyewitness ID test.

We the jury…have some questions

The efficacy of the jury system has provided much fodder for thought here at ‘a public defender’, starting way back in 2008 when Florida proposed giving jurors the right to submit questions to be asked of witnesses, and most recently last year, in a series of posts about the need for unanimity and general ways to improve the jury system (through Q&A during closing arguments or better jury instructions).

I started out with the firm view that any active participation by jurors during a criminal trial was antithetical to the idea of the burden of proof resting squarely on the State. I have softened my stance a bit, as can be seen in the Q&A post, and now I am definitely intrigued by the prospect of a limited trial run wherein jurors can ask questions of the lawyers (but I’m still very hesitant to let jurors pose questions to witnesses).

Michigan has recently introduced some interesting changes to their rules, which have got me even more interested in this idea:

Michigan jurors will be able to pose questions to witnesses; take notes; get mid-trial commentaries from lawyers; in civil cases, discuss the evidence while the case is still in progress, and get a final summation from the judge, according to the 14-page order hammered out after a two-year test period.

Once again with the “pose questions to witnesses”. But let’s skip that for now. The “mid-trial commentaries” seem like an interesting prospect, but have a fatal flaw, especially in a criminal case. No defense attorney would avail of this. Either this “mid-trial commentary” comes before the State has rested, in which case why would a defense attorney comment on the strength of the State’s case up to that point, giving the State ideas about what witnesses they need to call, or if it’s done after the State’s case, there’s little difference between this “mid-trial commentary” and closing argument.

I suppose there might be very rare and specific cases in which the defense could utilize this commentary to set up their case-in-chief, but the risk seems far greater than the reward.

Some of the objections to the other proposals are self-evident: an impartial final summation of the facts from the judge? Talk about an appellate issue nicely wrapped in a bowtie. And frankly, jurors should always have the ability to take notes and should always receive the judge’s final instructions in writing.

I’ve never quite understood the prohibition against jurors discussing the case while evidence is still being presented. What does it prevent, exactly? Do we really believe that if they don’t talk to one another they won’t make up their minds until all the evidence has been presented? That’s naive. In fact, discussing the evidence during the presentation of the evidence may help some jurors better understand the evidence that is subsequently presented: some may have missed a key piece of evidence and thus lose context for a following witnesses testimony. It doesn’t bother me as much.

But this reiteration of the need for some sort of change in the jury system has reinforced the notion in my head that a limited period of dialogue between the jurors and the lawyers after the presentation of all evidence might greatly assist the jury in their decision-making. One of the judges who’s quoted in that Michigan article is right: jurors aren’t children. But as I’ve argued before, the best way to approach them is that they are, and what better way to do that then to let them ask you questions about your case, so you can clearly address their issues with the evidence – or lack thereof? What are the downsides to this? [See this article by Walter Olson in a 2003 issue of Reason for further thought.]

Florida’s death penalty is unconstitutional

In a fascinating decision from the United States District Court for the Southern District of Florida, Judge Jose Martinez has ruled that Florida’s capital sentencing statute violates Ring v. Arizona. In Paul Evans v. McNeil [pdf] (scroll to page 78 of the document), the district judge considers – and rejects – 16 claims for relief before finally getting to the Ring claim. For those who don’t know, in Ring v. Arizona, SCOTUS held:

This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.

In Walton v. Arizona, 497 U. S. 639 (1990), this Court held that Arizona’s sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as “element[s] of the offense of capital murder.” Id., at 649. Ten years later, however, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), which held that the Sixth Amendment does not permit a defendant to be “expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Id., at 483. This prescription governs, Apprendi determined, even if the State characterizes the additional findings made by the judge as “sentencing factor[s].” Id., at 492.

Apprendi’s reasoning is irreconcilable with Walton’s holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.

In other words, any aggravating factor that exposes the defendant to the sentence of death must be found by a jury, beyond a reasonable doubt. A judge cannot find an aggravating factor that then increases the defendant’s punishment to death.

Florida’s capital sentencing statute (see also) permits exactly that:

(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.

(Emphasis mine). In a Florida capital case, the jury’s recommendation as to death is merely advisory. The court, after receiving the jury’s recommendation, must find the existence of an aggravating factor and determine whether that is outweighed by a mitigating factor and then decide whether to impose the sentence of death.

But this highly convoluted and “advisory” process gets even worse: a capital jury does not have to make specific factual findings. Reviewing courts never know what aggravating or mitigating factors were found. It is possible that some jurors found no aggravating factors, or that each juror found a different aggravating factor or all jurors found aggravating factors but some found they were outweighed by mitigation.

All it takes, in Florida, is a simple majority of jurors to recommend a sentence of death. Once that happens, a separate hearing is conducted in front of the judge only. The state and defense may present additional evidence and then the judge has to find an aggravating factor. Since the judge doesn’t know what aggravating factor the jury may have found, he may find an entirely different factor and not find the existence of the one the jury found!

This is squarely at odds with Ring. Under Ring, a jury – and only a jury – can find beyond a reasonable doubt the existence of an aggravating factor that exposes the defendant to the sentence of death.

What’s even more troubling according to Judge Martinez – and I agree – is that there is no evidence to show that the jury in Evans’ case found the existence of an aggravating factor by even a simple majority. Consider the scenario – as in this case – where the jury voted 9-3 in favor of death. Since we don’t know what aggravating factor was found by whom and how many, it’s possible that 5 jurors found the existence of one aggravating factor and 4 jurors another – both below the number 6, which is just half of the jury. While unanimity is not required, the Court is rightly troubled by the fact that this sentencing scheme can permit a man to be sentenced to death when not even 50% of the jurors agree on an aggravating factor.

In this news article, a (presumably) sitting Florida judge [Judge O.H. Eaton Jr., who offers legal analysis for WESH 2 – heh] opines that the decision affects only Mr. Evans and the effect on Florida’s death penalty as a whole will not be felt for years, if at all:

The judge’s decision in the murder-for-hire case only affects that particular trial. Eaton said Florida’s attorney general may file an appeal with the 11th Circuit Court in Atlanta.Eaton said that if the ruling has any effect on Florida’s death penalty statute, it will not be immediate.”That would be several years down the road,” Eaton said.

Perhaps the good judge missed this from footnote 33:

Here, the Court finds that Ring does apply in Florida and the Florida sentencing statute is unconstitutional.

Don’t even think about asking me what this means for the Casey Anthony trial.

This, that and the other

Here are some stories that are deserving of more attention than 140 characters provides, but not interesting enough to get me to write a whole post about them:

  • In what is reminiscent of the plot of an O’Henry short story or an article on, a man robs a bank, asking for only $1, so he can be arrested and spend a few years in jail. His logic?

That’s right. James Verone says he has no medical insurance. He has a growth of some sort on his chest, two ruptured disks and a problem with his left foot. He is 59 years old and with no job and a depleted bank account. He thought jail was the best place he could go for medical care and a roof over his head. Verone is hoping for a three-year sentence.

  • Connecticut judges agreed to allow cameras in all Judicial District criminal courtrooms starting in January:

Beginning in January, cameras and recording devices will be allowed at criminal court hearings in the state’s 13 judicial districts. Whether a proceeding may be televised or recorded will be up to the discretion of the judge in the courtroom. Cameras will be prohibited from courtrooms in which the proceedings involve a sexual assault or a juvenile defendant.

Connecticut’s Commission on Child Protection – deep in the red – folds and its responsibilities will now be shouldered by the Public Defender’s Office:

The state agency that pays private lawyers to represent poor parents and children in child-protection cases has run up such a gaping deficit and owes the lawyers so much money that the agency has been abolished; its work will be folded into the public defenders’ office starting July 1.

Nearly 200 private lawyers are owed as much as $2.4 million by the Commission on Child Protection – which had overspent its budget by $3.8 million at one point late last year. That was the largest deficit, by percent of budget, of any agency of state government.

Most of the lawyers devote at least 80 percent of their practice to this work, which includes defending parents who face losing custody of their children in neglect cases brought by the Department of Children and Families. The lawyers, who also represent children in court, haven’t been paid since October or November in many cases.

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty’s costs.

The study’s authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin’s death row will have swollen to well over 1,000.

Among their findings to be published next weekin the Loyola of Los Angeles Law Review:

The state’s 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.

A death penalty prosecution costs up to 20 times as much as a life-without-parole case.

The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.

Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.

The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.

Bay Area prosecutors have been forced to dismiss more than 800 criminal cases in the past year because of allegations of police corruption that include selling drug evidence, conducting unlawful searches and conspiring to get men drunk and then arrest them on drunk-driving charges.

In some cases, defense lawyers found that security-camera videos in residential hotels—showing police making drug arrests—apparently contradicted the officers’ sworn statements.

In one case, a suspect was seen in a video of his arrest wearing a different jacket from the one the officers entered into evidence.

Last year, the San Francisco district attorney dismissed about 700 criminal cases after a drug crime-lab worker was accused of stealing evidence. This year, since March, the district attorney has dismissed about 125 cases, mainly felony drug prosecutions.

  • An interesting opinion from SCOTUS today, in Turner v. Rogers [pdf], holding that while the Constitution does not guarantee the provision of counsel in civil contempt cases where incarceration is a possibility, the Due Process clause mandates certain procedural safeguards before a person may be imprisoned after being held in contempt.

And you say I don’t post anymore.


The engine that just didn’t give a f*ck

mom ran you over in a car? dad beat you? GTFO

[Yes, I’m mixing my children’s stories here in order to come up with this creative title, but ‘Justice Thomas is an effing hypocrite’ just doesn’t have the same oomph.]

On the twentieth anniversary of Justice Thomas’ confirmation to the highest court in the United States, USA Today has this “retrospective” piece on the work of the Silent Assassin. Focusing primarily on his work in criminal justice cases, the article lays bare the complete disdain Justice Thomas has shown for those accused of and convicted of crimes. And no story of this ilk is complete without a quote that makes you groan and your eyes roll so far into the back of your head that you’re not quite sure if you’re awake or dreaming:

Twenty years ago, when a senator asked then-appellate Judge Clarence Thomas why he wanted to be on the Supreme Court, Thomas said he often looked out his courthouse window at arriving prisoners and said to himself, “But for the grace of God, there go I.”

During his confirmation hearing, Thomas explained that he would identify with defendants: “So I can walk in their shoes and I could bring something different to the court.”

It’s okay. Gagging on whatever you’re eating/drinking/throwing a fist through your monitor is an acceptable reaction. I’ll wait till you call 911/poison control/customer service. Back? Feel better? Didn’t think so.

That the same man could utter the words quoted above during his confirmation hearings and then spend 20 years on the bench imposing his morality and punishing others for not being as stoic as he is reflects two things: 1) a truly distorted view of himself as a hero figure; and 2) the utter uselessness of confirmation hearings.

The USA Today piece focuses on Thomas’ opinions in recent cases like Connick v. Thompson and Cullen v. Pinholster. On Pinholster:

Thomas wrote: “When he was very young, Pinholster suffered two serious head injuries, first at age 2 or 3 when he was run over by a car, and again at age 4 or 5 when he went through the windshield during a car accident. When he was 5, Pinholster’s stepfather moved in and was abusive, or nearly so.”

In her rendition of the facts, Sotomayor noted that it was Pinholster’s mother who ran him over as child. Regarding the stepfather, Sotomayor offered no “nearly so” caveat: “Pinholster’s stepfather beat him several times a week, including at least once with a two-by-four board,” she wrote. “There was so much violence in the home that Pinholster’s brother dreaded coming home each day. Pinholster’s half-sister was removed from the home as a result of a beating by his stepfather.”

Thomas allegedly has this on his office wall: “If you do the crime, I’ll damn well make sure you do the time. Constitution? What Constitution?”* The article collects quotes from legal beagles like Jeffery Fisher and the inimitable Orin Kerr, who, due to the possibility of appearing before said Justice have to employ the use of euphemisms in describing his “jurisprudence”:

“When he steps in the shoes of people,” says Stanford University law professor Jeffrey Fisher, “he’s more likely to say tough-love is necessary and you have to take responsibility.”

“He certainly is the least compromising of the justices, in that he has strong views and is reluctant to temper them,” says George Washington University law professor Orin Kerr […]. “The themes you see in his criminal law cases are the themes that you see elsewhere. He says, ‘If you do wrong, you have to take the consequences.'”

Delicately put. In other words (my own): he just doesn’t give a fuck. He thinks he’s better than you and is not afraid to tell you so. He’s on the Supreme Court and you’re just a convicted murderer-scum-of-the-earth. It’s not that Thomas exhibits a failure to understand the nuances and circumstances of individuals’ lives or to appreciate the different shades of gray that make up each human. He’s too smart not to get that. He just intentionally disregards them. Quoth Gamso:

Suck it up is his mantra. Whether you deserve it or not. Them’s the breaks. If your life sucks, live with it. If someone hurts you, too bad. No remedies. No relief. No comfort. No apologies.

So what if you spent decades in prison for a crime you didn’t commit, almost got executed for it? That’s life. Why should the people who cheated to put you there have to pay for what they did? Some people are winners, others losers.

And who cares about the losers?

Not Justice Thomas.

*That’s not a direct quote. In fact, I may have made it all up. Actually, I’m pretty sure I did.



Georgia’s retarded

In 2002, in the landmark decision Atkins v. Virginia, SCOTUS held that it was a violation of the 8th Amendment to execute a mentally retarded individual. In a beautifully succinct opinion, Justice Stevens (Kagan? Kagan who?) wrote for a 6-3 majority that the 8th Amendment’s ban on cruel and unusual punishments prohibited the execution of the mentally retarded. In that opinion, he noted a movement in state legislatures toward banning the execution of those who are mentally retarded:

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia apparently led to the enactment of the first state statute prohibiting such executions…

Georgia, once at the forefront of radical movements in the criminal justice system, is now floundering at the bottom. Yesterday, the GA Supreme Court upheld [pdf] the constitutionality of a statute that requires defendants to prove beyond a reasonable doubt that they are, in fact, mentally retarded. In a decision that is short on logic or reasoning and long on law-and-order-fed-vengeance, a 6-1 majority relied – I kid you not – on the fact that SCOTUS, in Atkins said nothing negative about GA’s burden of proof. Don’t believe me? Here:

In Atkins, the Supreme Court praised Georgia as being the first state in the nation to have banned the execution of mentally retarded persons, and the Supreme Court made no negative comment about Georgia’s heightened burden of proof, but instead counted Georgia among the states forming the national consensus about the treatment of mentally retarded defendants.

Georgia, among other states with heightened standards for defining and proving mental retardation, was counted by the Supreme Court as being part of the national consensus regarding the treatment of mentally retarded defendants, and it seems to us entirely illogical that Georgia could have been a part of the consensus dictating a categorical rule and yet somehow simultaneously in violation of that rule.

(Emphasis in original.) Justice Melton, who authored the 6-1 GA decision, seems to have a massive reading comprehension problem. Atkins was a decision about whether the practice of executing mentally retarded people violated the Constitution, and to that extent the Court’s praise (such as it was) of the Georgia statute was warranted. What the court in Atkins was not deciding was the burden of proof required to find that a defendant is mentally retarded. But it gets worse. Here’s what Justice Stevens wrote:

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U. S. 399 (1986), with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id., at 405, 416-417.

Nowhere in Atkins does the Court say that a defendant must prove beyond a reasonable doubt that he is mentally retarded in order to save execution. The paragraph above and its mention of the definition of mental retardation stems from the large number of briefs submitted to the court by psychiatric organizations highlighting that mental retardation isn’t a definite concept that can be given a fixed number. While we may now generally use an IQ range of 70-75 to separate those who are “retarded” from those who aren’t, any reasonably-versed practitioner will tell you that that is not something that can be set in stone. Individuals with an IQ of 80 may well be mentally retarded. In that vein, make sure you read this terrific law review article on the challenges of implementing Atkins. Here’s an excerpt, which highlights the problem:

What is so striking about Atkins is that the Court was persuaded to adopt a per se rule exempting all persons with mental retardation from the death penalty based on diagnosis alone. This is all the more remarkable in light of the fact that the line between being mentally retarded and being of borderline intelligence is operationalized statistically by an admittedly arbitrary line on a bell curve representing performance on an IQ test two standard deviations below the mean. In short, the diagnosis of mental retardation is in large part a statistical construct.

As for Melton’s claim that since they were praised for being on the forefront of this change, they should be allowed to rest on their laurels? The dissent rips it to shreds.

It seems that Georgia is now the only state in the country that requires such an impossible burden. Of the 35 states that impose the death penalty (and thus prohibit the execution of the mentally retarded), 22 require proof by a preponderance of the evidence – a much, much lower standard. Four states require proof by clear and convincing evidence and the three States (*cough*Connecticut*cough*) have not yet articulated the standard, though I would be surprised if it were anything but preponderance here.

The dissent also rightly points out the import of the language in Atkins, that the highest burden of proof needs to be reserved for the determination of factual allegations and scientific diagnoses are by nature more fuzzy. To subject the interpretation of test scores, manifested symptoms and perceived cognitive difficulties to that high standard would only serve to ensure that a mentally retarded individual will be executed, thus clearly violating the Constitution.

Even more puzzling, to me, is the fact that it seems that Georgia has no standard for proving mitigation in capital cases. It seems that juries can decide to recommend a sentence of life for any reason whatsoever. In fact, one of the complaints [pdf] about Georgia’s capital system is that its jury instructions are so poorly crafted that juries are regularly misled: a full 62.2% of jurors surveyed in this study believed that the defense had to prove mitigating factors beyond a reasonable doubt, which is incorrect.

Think about that. Georgia defendants aren’t even required to prove ordinary mitigation factors. A defendant may get up and say “spare me, I’m left handed” and the jury can say “but we saw you writing with your right hand” and still decide, that because he’s left handed, they’ll spare his life. A defendant can claim to be the love child of Amelia Earhart and Britney Spears, and based on that that jury can spare his life. But if the defendant is mentally retarded and thus protected by the Constitution, he must prove it beyond a reasonable doubt?

That’s not only troubling, it is what I call retarded. I think it’s about time Georgia got its own category on this blog.