Tag Archives: dna

Your rights are only worth the probable cause used to extinguish them

This, folks, is what happens when you don’t pay attention to the erosion of our collective rights. This is what happens when you steadfastly maintain an “us vs. them” attitude. This:

Maryland Deputy Attorney General WINFREE: But what I — the cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause, on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him on — based on probable cause surrenders a substantial amount of liberty and privacy.

If your eyes haven’t popped out of your head yet, you should check with an ophthalmologist. They may be stuck in place. The Government – Your Government – has brazenly started taking the tact in open court that simply by virtue of being arrested, an individual surrenders a “substantial amount” of liberty and privacy. I’m pretty certain she didn’t mean this in the literal sense of arrest and being locked up (which also has some requirements of balancing interests). This is in the sense that once you’re arrested, your rights are limited and you, by virtue of causing the police to arrest you, have forfeited privacy expectations and Constitutional rights.

Her argument, in that brief moment before Justice Kagan challenged her on it, was that by virtue of an arrest, an individual has voluntarily sacrificed his Fourth Amendment rights as is the issue in the case she was arguing.

Do you know what it takes to arrest someone? Next to nothing. You know the “ham sandwich” joke? Well probable cause is what they replaced grand juries with. And probable cause is whatever the hell they want it to be. It doesn’t have to be probable cause of the particular officer making an arrest, either and it can be based on completely innocuous every day actions of regular people.

I don’t normally say this, but thanks Justice Kagan:

JUSTICE KAGAN: But, Ms. Winfree, that can’t be quite right, can it? I mean, such a person, assume you’ve been arrested for something, the State doesn’t have the right to go search your house for evidence of unrelated crimes; isn’t — isn’t that correct?

MS. WINFREE: That’s correct, Justice Kagan.

JUSTICE KAGAN: It doesn’t have the right to search your car for evidence of unrelated crimes.

MS. WINFREE: That’s correct.

JUSTICE KAGAN: Just because you’ve been arrested doesn’t mean that you lose the privacy expectations and things you have that aren’t related to the offense that you’ve been arrested for.

Of course, what’s lost is that this State (Maryland) and the 49 other states that joined Maryland via an amicus brief already routinely take the position that once you’re arrested, you lose rights. (CT passed just such a bill last year. All my posts on DNA are here.)

In the case being argued, Maryland v. King, the Court is tasked with applying the Fourth Amendment to the 21st Century (is your computer’s recycle bin like your home’s trash can?). When someone is arrested for Crime A, can they take the person’s DNA and then enter it into a cold-case database to see if it matches any old crime. In King’s case, it did. He was then charged with and convicted of Crime B. At the time they took the DNA, they had absolutely zero suspicion that he was involved. It’s a routine procedure done with all arrestees.

These laws permit the collection of DNA from anyone who’s been arrested because they got into a drunken bar fight or because their boyfriend called the cops and said they were threatened or because a vindictive neighbor doesn’t like your dog pooping on his lawn or because you’re driving while black. And you have to give up your DNA, because the Man said so. And with that DNA, you give up your genome, your individual traits and characteristics.

You can read the oral argument transcript here and reports from SCOTUSBlog, the ABA Journal, the WaPo and the NYTimes to get a sense of how the court will rule. There are some Scalia zingers in there too. But I wanted to highlight this separate quote, for fear that it will get lost in the greater discussion.

And I want to keep asking that question: why aren’t you scared yet? Why don’t you care enough?

Justice Alito called this the “most important criminal procedure case this court has heard in decades”. He’s absolutely right. It’s time for the court to decide what’s more important: helping cops catch crooks or the individual liberties and freedoms of every citizen of this country. The answer’s clear to me. Is it to you?

Lost evidence in the age of DNA

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For a while now, we have heard about exonerations obtained due to DNA testing. The current number from the Innocence Project stands at, I believe, 208. One of the more common refrains you hear from champions of innocence is that there are thousands more in jail that are innocent and have no way of proving it. In some cases, there is no DNA evidence and in some, it is lost.

The Denver Post did a terrific series last month on lost evidence, which they called “Trashing the Truth“. (I apologize if its been covered in the blogosphere before – I just stumbled across it.) The Post engaged in a detailed investigation of evidence rooms across the country and profiled several cases where DNA evidence has been lost or destroyed – willfully or otherwise – and innocence bids are foreclosed.

Authorities across the country have lost, mishandled or destroyed tens of thousands of DNA samples since genetic fingerprinting revolutionized crime solving 20 years ago.

Evidence from cold cases goes misplaced across Colorado.

Delicate traces of human biology sit stuffed into pizza and fried-chicken boxes in rat-infested New Orleans evidence vaults.

And specimens are dumped by the truckload in Los Angeles, Houston and New York – sometimes soon after high-profile exonerations.

In a country whose prime-time TV lineup glorifies DNA forensics, many real-life evidence vaults are underfunded and mismanaged, struggling to keep up with technological advances and lagging behind most corner groceries in the way they track valuable crime-scene items.

Facing real-world training and space challenges, even the best-intentioned clerks commonly toss DNA samples, especially from old cases, in what one expert calls the “sledge-o-matic approach to clearing out evidence rooms.”

“You can’t keep everything,” said Arthur Morrell, Orleans Parish clerk of Criminal Court.

The Denver Post examined purges in 10 states and found that authorities destroyed biological evidence in nearly 6,000 rape and murder cases during the past decade, rendering them virtually unsolvable. Over the past three decades, the loss or destruction of DNA evidence in 28 states has undermined efforts by at least 141 prisoners to prove their innocence, The Post has found.

In this age of high profile DNA cases, it is incumbent upon states to reorganize their storage procedures and provide high-tech facilities. If the criminal justice system is indeed a pursuit of the truth and of justice, then it cannot simultaneously aid injustice by destroying evidence.

There are just far too many instances and far too many inmates profiled by the Post. I strongly recommend that you take this Sunday afternoon to read through some of them, available at the link above. One of the higher profile innocence bids is that of Tim Masters, who was convicted with virtually no evidence, but primarily on some sketches that he had done (he was 15) and an FBI profile that was never created.

Edit: Another one to look at is this piece on Clarence Moses-El, who was first suspected of raping a woman because his name came to her in a dream. (I kid you not.) The three people she initially named (right after the incident) were never interviewed by police. Finally, years after his conviction, a judge ordered DNA testing. One month later, the evidence was destroyed by the police department.

Some of the comments in these stories by law enforcement officials and prosecutors are just disgusting. The arguments they put forth in opposing motions for DNA testing are very very disturbing and make you wonder if they really are seeking justice.

208 (FL) prompts calls for EyeID Reform

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As the dust on the 208th DNA exoneree had barely begun to settle, Broward County public defender Howard Finkelstein sent a letter to law enforcement officials suggesting a change in identification procedures.

Bostic’s [the exoneree] accuser recently told an investigator she never saw her rapist. She picked Bostic out of a photo lineup, she said, because she had seen him in the neighborhood in the days before the attack.

Simple extra precautions could keep this from happening again, Finkelstein said.

“These procedures will impact the human cost of misidentification,” he said. “This isn’t about pointing the finger at law enforcement. This is about making sure the methodology and the systems we employ are designed so innocent people don’t get ensnared in our system.”

Currently, Florida uses the non-blind, non-sequential method of identification. Finkelstein called for them to use the double-blind, sequential method. Law enforcement’s response was curious, if not typical:

“If we had concerns about the procedure, we would have changed the procedure,” said Elliot Cohen, spokesman for the Broward Sheriff’s Office. “But new ideas and new proposals are always worth looking at, and we’ll take it in that spirit.”

At least eyeid reform seems to be gaining some momentum. 16 states have considered some legislation in this regard during the past year. Connecticut, although one of those sixteen, couldn’t get past simply funding a pilot program. I’m not even sure that the pilot program has gone into effect.

Warrants released

Cover your ass-ery continues

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Remember the series of posts last month about the Hartford pastor that rejected plea deals despite DNA evidence proving (to the tune of 99% certainty) that he was the father of a now 15-yr old girl’s baby? Remember his attorney’s comments to the court and the press that spawned approximately 50 comments here? I sure do. They’re at it again.

Modesto Reyes pled guilty a few days ago to sexual assault. It seems like it was an open plea. He also pled guilty under the Alford doctrine (which is quite common here as discussed before). That’s fine. He can and the court can accept that plea. His attorney wasn’t done, however.

Defense attorney William Gerace told the court Wednesday that he had urged his client to enter a straight guilty plea instead of the Alford plea.

Gerace said that Reyes’ sentence could be lengthened as a result of taking an Alford plea.

“I have explained it to him ad nauseam,” Gerace told the court. “It’s my job to tell him what I think and that’s what I think.”

I guess it’s possible, but I’ve never seen a sentence increased because the plea is an Alford plea, because you’re still admitting that the State had enough evidence to find you guilty.

Does the court (or the press) need to know the details of the attorney’s opinion and his strong advice to client? Would it not suffice to say that the client has been advised of all the consequences of a guilty plea, even under the Alford plea, and that he has decided to proceed in that manner?

Or is this okay? Is this something you would put on the record?

Early morning criminal justice roundup

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The most interesting story is this one about lawmakers considering a proposal to limit probation to a 2-year term, down from the current 5-years.

The goal is to focus supervision on offenders during their first two years of probation, when most violations occur, said William Carbone, executive director of the state Court Support Services Division.

Nearly 90 percent of probation violations in the state occurred during the first two years, according to statistics presented yesterday during a hearing in Hartford.

The option would give offenders an incentive to turn their lives around and would reduce the number of people who go back to prison, Carbone said.

Now this is sensible legislation, which comes from the sentencing task force, which has studies these issues over time.

Judge Patrick Clifford, chief administrative judge for criminal matters, said judges should have the right to order probation terms longer than two years.

Longer terms might be warranted in cases in which larceny offenders need time to repay victims, Clifford said. But he agreed most people on probation don’t need more than three years.

“If the person hasn’t violated within two or three years, it’s kind of just waiting for them to make a mistake,” Clifford said.

Okay, enough of the good stuff. On to the depressing stuff.

More stories this morning on Gov. Rell’s parole ban, but this time with more substance. First up is the prison population shift. As noted yesterday, more than 1,200 non-violent inmates are being fast-tracked for parole to make room for the violent offenders who have been denied parole.

The next one says simply: Parole Review Affects Hundreds.

Nearly 40 percent of all parolees were serving sentences for drug offenses, which are not classified as violent, according to state records. But there are also hundreds of parolees completing sentences for killings, rapes, robberies and kidnapping. Murderers are no longer eligible for parole, but 60 inmates who committed murders before a 1981 change in the law are on parole.

In recent years, the number of parole violators back in prison at any one time has hovered between 400 and 500, state records show. But that may rise considerably with Rell’s crackdown.

“If we identify anyone in this review who has failed to follow the terms of their release – or if anyone currently on parole fails to do so in the future – we will revoke their parole and return them to prison to serve the balance of their sentence,” Rell said last weeek.

CT SC Excises Portion of Statute to Comply With Apprendi

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On September 11, 2007, the Connecticut Supreme Court will release an opinion in which it remands for a new sentencing hearing where the trial court, not the jury, made one of the findings necessary for a penalty enhancement pursuant to 53a-40 (h). In State v. Bell, the Court holds that Apprendi and its progeny require a jury finding as to all factors which, if found, mandate a greater penalty.

We conclude that the determination by the trial court, rather than the jury, that imposing extended incarceration would best serve the public interest clearly violated the defendant’s constitutional rights as explicated in Apprendi and its progeny. We further conclude that, because the jury must make that determination before the enhanced sentence under § 53a-40 (h) can be imposed, the case must be remanded for a new sentencing proceeding.

The Court explains Apprendi v. New Jersey and outlines the progression of the rule since that case. The Court then engages in statutory interpretation of the statute at issue, ultimately finding that subsection (h), while couched in language of what the trial court must do, creates a second finding of fact that must be made prior to imposition of the enhanced penalty, thereby necessitating a jury finding on that fact to survive a constitutional challenge.

Subsection (a) of § 53a-40 provides in relevant part: ‘‘A persistent dangerous felony offender is a person who: (1) (A) Stands convicted of manslaughter, arson, kidnapping, robbery in the first or second degree, or assault in the first degree, and (B) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (i) The crimes enumerated in subparagraph (A) of this subdivision or an attempt to commit any of said crimes . . . .’’ The defendant does not challenge his status as a persistent offender in light of the jury’s verdict in the present case of guilty on the count of assault in the first degree and his previous conviction of robbery in the first degree. Subsection (h) of § 53a-40 provides in relevant part:‘‘When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that such person’s history and character and the nature and circumstances of such person’s criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35a . . . shall sentence such person to a term of imprisonment of not more than forty years . . . .’’ (Emphasis added.) The dispositive question under Apprendi is: ‘‘[D]oes the [statute prescribe a] required finding [that] expose[d] the defendant to a greater punishment than that authorized by the jury’s guilty verdict?’’ Apprendi v. New Jersey, supra,
530 U.S. 494.

****

In examining the text of the statute, we note at the outset that, by its use of the conjunctive ‘‘and,’’ the statute appears to impose two preconditions for an enhanced sentence to be imposed in lieu of the lesser sentence prescribed for the offense for which the defendant stands convicted: (1) the jury’s determination that the defendant is a persistent offender; and (2) the court’s determination that the defendant’s history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve the public interest.

****

The Supreme Court’s decisions subsequent to Apprendi, however, are instructive when considering the effect of discretionary authority. The mere fact that the statute may permit the court to exercise discretion in deciding on what particular facts it will rely in making its public interest determination would not insulate the statute from constitutional infirmity if it permits the trial court’s ultimate finding to subject the defendant to a higher sentence than that authorized by the jury’s verdict.

The Court rejected the State’s contention that the error was harmless, noting that although there was sufficient evidence on the record to support the trial court’s conclusion that extended incarceration will best serve public interest, the jury did not hear any of that evidence, as it was presented at a hearing only before the trial court. The Court was therefore unable to conclude that the jury would have been compelled to make such a finding as a matter of law.

Finally and perhaps most interestingly, the Court addresses the constitutionality of the statute itself, which indicates that the public interest finding is to be made by the trial court. Believing that the legislature would enact the statute as necessary to pass constitutional muster, the Court itself excises the language giving rise to the violation, i.e., “the court is of the opinion that” in order to require and ensure a jury finding of whether extended incarceration will best serve the public interest.

a public defender

Tag Archives: dna

Your rights are only worth the probable cause used to extinguish them

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Lost evidence in the age of DNA

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208 (FL) prompts calls for EyeID Reform

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Warrants released

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Cover your ass-ery continues

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Early morning criminal justice roundup

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CT SC Excises Portion of Statute to Comply With Apprendi

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