September 2008 Archives

September 16, 2008

Voting Rights for Ex-Felons

According to a common criminal justice aphorism, "If you do the crime, you'll do the time." In many states, however, the more accurate version of this aphorism is, "If you do the crime, you'll do the time -- and never vote again." In over 30 states, "ex-felon" is a label that bars people from voting even if they've fully paid their debt to society. Nationwide, over 4 million ex-felons have lost the right to vote. This is a lot of disenfranchised people in a country that has taken up arms and shortened lives in an effort to spread the blessings of liberty to less enlightened countries.

Since members of ethnic minority groups are over-represented in prison populations as compared to their numbers in the general population, the denial of voting rights to ex-felons has racial consequences. Estimates are that in some states, as many as 25% of African-American men of voting age are unable to vote because they are ex-felons.

State-to-state differences with respect to voting rights for ex-felons are an example of how much power states have to develop their own criminal justice practices. In Oregon and Utah, for example, felons can register to vote as soon as they are released from state custody -- even if they remain on parole or probation. In Washington state, by contrast, ex-felons can never vote. Thus, the happenstance of where people commit crimes can greatly alter their post-conviction rights.   

Community groups such as ACORN (Association of Community Organizations for Reform Now) and The Western Prison Project are actively involved in efforts to restore voting rights to ex-felons, and their efforts are beginning to pay off. For example, a 2008 change in Florida law restored voting rights to more than 100,000 former felons.

Of course, the fact that greater numbers of ex-felons may be able to register to vote does not necessarily mean that they will. Laws granting voting rights to ex-felons are not self-executing. Ex-felons must be aware that they retain the right to vote and then must follow what may be complex registration requirements. Nevada, for example, recently restored voting rights to a limited number of ex-felons, but ex-felons who want to register to vote must petition the Nevada Board of Pardon and Parole to do so. Thus, community groups that hope to translate the right to vote into actual votes must work not only with state legislatures, but must find ways to inform ex-felons of their right to vote and then encourage them to register and show up at the polls.      

September 10, 2008

Sex Appeal

Charles Dean Hood was sentenced to death in Texas for committing a double murder.  ("Hood" is certainly an unfortunate surname for a person facing criminal charges.) On the eve of his execution, Hood may gain a reprieve based on a "sex appeal". Hood's lawyers have uncovered evidence that while Judge Verla Sue Holland was presiding over Hood's trial and D.A. Thomas O'Connell Sr. was assisting in his prosecution, they were carrying on a secret love affair.      

If Holland and O'Connell were indeed litigating by day and fornicating by night, they grossly disregarded their ethical responsibilities and wasted a lot of Texas taxpayers' money if Hood (and possibly many other convicted criminals whose cases they participated in) have to be re-tried. 

The American Bar Association Code of Judicial Conduct (which admittedly does not have the force of law) admonishes judges not to engage in conduct that "would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." While this language may be vague and hortatory, certainly the perception (if not the reality) of partiality arises when a judge and a prosecutor are literally in bed together.

As for D.A. O'Connell, Standard 3-1.3 of the American Bar Assoiation Criminal Justice Standards states in part that, "A prosecutor should not permit his or her professional judgment or obligations to be affected by... personal interests."

If the evidence of the affair is accurate, Holland's and O'Connell's behavior is irresponsible and unfathomable. After all, Hood was charged with capital murder, not spitting on the sidewalk. Legal ethics required either Holland or O'Connell to leave the case. Since they did not do so, they apparently felt a greater responsibility to their secret love affair than to their professional obligations. The episode undercuts the claim that while the U.S. system of justice cannot guarantee correct outcomes, it can guarantee a fair process.    

September 9, 2008

O.J. Simpson Meets Jury # 3

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The terms "O.J. Simpson" and "jury selection" go together like peanut butter and jelly. In the mid-1990s, one jury decided that Simpson was not guilty of brutally killing his ex-wife Nicole Brown Simpson and her friend Ron Goldman. (Had they had the chance, this group of jurors might also have decided that gravity ceases to exist on Tuesdays.) Shortly thereafter, in a civil trial, a second jury decided that Simpson had killed his ex-wife and Goldman, and held Simpson liable for millions of dollars (of which he has paid little or nothing). 

Now Simpson is on trial in Las Vegas, accused (with a co-defendant) of breaking into a hotel room and robbing two sports memorabilia dealers at gunpoint. Simpson admits entering the hotel room, but denies that guns were involved, and also claims that he was only trying to recover personal memorabilia that had been stolen from him.

This is one of those cases in which it may take almost as long to select the jury as to try the case. Simpson's notoriety requires the judge and the attorneys to question potential jurors carefully. During the process called "voir dire," they'll try to eliminate potential jurors who might be inclined either convict or acquit Simpson based on their attitudes stemming from his possible involvement in the deaths of his ex-wife and Goldman. Similarly, they want to eliminate people who might want to get selected for the jury so that they can later go on a TV talk show and chat about their experiences as an O.J. Simpson juror.

It's not necessary to impanel people who can honestly say, "I've never heard of O.J. Simpson." But it should be reasonably possible to find impartial jurors who can honestly say, "I can disregard what I've heard about O.J. Simpson and decide whether or not he is guilty beyond a reasonable doubt of committing the crimes with which he is charged." Right?

September 9, 2008

A Plea Bargain That Didn't Sell

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Almost every criminal case ends with a plea bargain. Prosecutors and defense lawyers agree on defendants' sentences, and judges make them official by accepting the agreed-upon terms. But in the high-profile case of Henry Samueli, the judge's refusal to accept a plea bargain serves as an important reminder that judges still have ultimate control over sentencing.

Samueli was a principal in Broadcom, a company that made a fortune by designing and selling computer chips. Samueli and other greedy Broadcom executives have been accused of inflating their already huge earnings by backdating stock options and then lying to the Securities & Exchange Commission about what they did. In the summer of 2008, Samueli pleaded guilty to lying to the SEC, but the guilty plea would stand only if the judge accepted the plea bargain that Samueli's lawyers worked out with federal prosecutors. Samueli's deal: He would not go to prison, but instead would be put on probation and pay a $12 million fine to the government. 

Federal judge Cormac Carney said, "No deal." To the judge, Samueli seemed to be buying his way out of prison by paying a far greater fine than the judge could impose after a trial. Also, the agreement failed to require Samueli to cooperate with prosecutors in cases involving other Broadcom executives.

Samueli can now withdraw his guilty plea and go to trial. If so, the jury will never be told that he had at one point tried to end the case by pleading guilty. More likely, the lawyers will try to work out a plea bargain that Judge Carney will accept. Samueli undoubtedly hopes that the judge will say, "You've got a deal" -- even if a revised agreement allows Samueli to avoid going to prison.

Speaking of options, you should know that plea bargains don't always give criminal defendants the right to withdraw guilty pleas should judges refuse to go along with their terms. A prosecutor may say something like, "I'll recommend to the judge that you not serve time in jail, but the sentence is up to them, and your guilty plea is final even if the judge refuses to follow my recommendation." In this situation, the defendant cannot not withdraw the guilty plea if the judge imposes a jail sentence.

September 3, 2008

Cross-Examination: Lessons From the Movies

Cross-examination is rarely the make-or-break phase of a criminal trial. But you wouldn't know that if you've seen a lot of courtroom movies and TV shows. Highly dramatic and entertaining though they might be, movies and TV tend to exaggerate the importance of cross-examination in the outcome of criminal trials. Unlike Perry Mason, actual cross-examiners rarely wrest confessions of guilt from witnesses, jurors, or courtroom spectators!

Watch closely, however, and you may be able to learn what good cross examiners should -- and shouldn't -- do. If you're looking for a model of good cross-examination techniques, you can't do better than the wonderfully funny film My Cousin Vinny. In the film, Vinny's (Joe Pesci's) client (his cousin) is charged with murdering a convenience store clerk. A witness for the prosecution testifies that he saw the defendant enter the store and then leave 5 minutes later. The witness is sure that no more than 5 minutes elapsed, because this is how long it took the witness to cook his breakfast grits.

On cross-examination, Vinny wants the witness to admit that grits need to be cooked for 20 minutes before they are ready to eat. But before confronting the witness with this fact, Vinny carefully uses a questioning technique called "closing the doors". Vinny realizes that the witness' 5-minute estimate might be correct -- if the witness likes under-cooked grits, or if the witness used "instant grits". So Vinny "closes the doors" to these possible explanations before asking the witness to admit that it took him 20 minutes to cook his grits on the day of the murder.

Vinny first asks the witness how he likes his grits -- "regular, creamy, or al dente?" The answer to this seemingly silly question ("Just regular, I guess") shows that the witness cooks his grits the same way everybody else does. Second, Vinny asks the witness, "Do you use instant grits?" When the witness replies, "No self-respecting Southerner uses instant grits," Vinny has closed the door to the other possible explanation the witness might offer to justify his 5-minute time estimate. When Vinny then asks the witness to admit that grits need 20 minutes of cooking time, the witness has to take back his 5-minute estimate and concede that Vinny is correct.

For a model of what not to do on cross examination, watch prosecutor Claude Dancer (played by George C. Scott) fall flat on his face in the classic courtroom drama, Anatomy of a Murder

Continue reading "Cross-Examination: Lessons From the Movies" »

September 3, 2008

"Smart" Fingerprint Technology

Forensic testimony based on fingerprint comparison is a familiar part of many criminal trials. Based on the generally-accepted principle that no two people (even twins) have identical fingerprints, experts often tie suspects to crimes through providing testimony that the suspect's fingerprint matches the prints found at a crime scene.

Now, with the help of a new laboratory technique, forensic experts may be able to "read" fingerprints and identify substances embedded in them. The laboratory technique consists of a process called "mass spectrometry," and as a result, fingerprints may serve as suspects' "chemical signatures".  For example, an expert may be able to testify that "the person who left this fingerprint had been touching cocaine (or a poison, or an explosive)."  Such testimony would do more than tie a suspect to a crime scene: It would also help to explain the suspect's motive for being at the scene. For instance, assume that Bob is charged with murder-by-poison. At trial, forensic expert testifies, "I found traces of the same poison in fingerprints found at the crime scene, and in my opinion, the fingerprints are identical to those of Bob." Such testimony does more than prove that Bob was at the crime scene -- it also helps to show how Bob committed the murder.

Because of popular TV crime shows, such as C.S.I., jurors have generally come to expect and be favorably impressed with forensic evidence. "Smart" fingerprints, which may indicate not only who was at a crime scene but also their purpose for being there, is a potentially powerful prosecutorial tool.