April 2009 Archives

April 30, 2009

Susan Boyle and (former) Sheriff Mike Carona

Susan Boyle is the frumpy, unemployed middle-aged spinster who became a YouTube sensation for her magnificent singing of "I Dreamed A Dream" (from Les Miserables) on the UK TV show, "Britain's Got Talent."

Mike Carona is the disgraced ex-Sheriff of Orange County (CA), who was fired and criminally convicted after a trial revealed his corruption and abuse of trust, including the trust placed in him by his wife.   

I would hope that Susan Boyle would see fit to forgive me for linking her name with Mike Carona's.  I do so because their disparate stories should remind us how easily fooled we can be: Susan Boyle's shabby outward appearance masked a marvelous singing voice; Mike Carona's suave, sophisticated appearance masked an evil intent to cheat, lie and steal. 

Our readiness to confuse exterior appearance with interior character is particularly risky in the context of our criminal justice system.  For example, jurors may arrive at incorrect verdicts if they evaluate expert witnesses' credibility based on their manner of speech and dress.  And police officers may pull drivers over based on seeming inconsistencies between their personal appearance and the make of car they are driving. 

Admittedly, outward appearances are far more easily observed than internal characters, and decision-making often has to proceed based on incomplete information.  However, the stories of Susan Boyle and Mike Carona should at least remind us always to check initial assumptions  before making decisions.  If this is true in life generally, it's especially important in a criminal justice system that can lock people up for years. 

April 23, 2009

The Phil Markoff Case and Pet Peeves

As you probably know, Phil Markoff, a seemingly squeaky-clean Boston University medical student, has been charged with murdering one masseuse he met through the Craigslist website, and robbing another.

The charges have given rise to examples of two of my pet peeves: 

Peeve # 1: Markoff's defense attorney, John Salsberg, is telling the media that "Markoff isn't guilty."  Just as prosecutors should never say that a defendant is guilty, defense lawyers have no business proclaiming their clients' innocence.  Unless Salsberg himself committed the crimes, he cannot possibly know whether Markoff is guilty.  Salsberg can say something along the lines of, "My client insists on his innocence."  Otherwise, he shouldn't talk as if he knows what he cannot possibly know.

Peeve # 2: Markoff's friends are griping that people are rushing to judgment instead of considering him innocent until proven guilty.  Of course criminal defendants are presumed innocent -- once inside the courtroom, when official proceedings can result in punishment.  But in the Court of Public Opinion, people have no power to pronounce guilt or punish suspects. Just as a parent doesn't need a jury to decide whether a child spilled a bottle of milk, individuals don't need a jury to tell them whether to believe that the information currently available suggests that Markoff committed a murder and a robbery.  A person's private belief that "Markoff did it" in no way violates the formal presumption of innocence.

April 21, 2009

Brakes Put to Car Searches


Arizona v. Gant has put a sudden stop to a decades-long practice of police officers routinely searching cars after arresting the drivers. In this April 2009 decision, the U.S. Supreme Court ruled that merely arresting a driver does not allow police officers to search the car. However, a search of an arrested driver's car can be valid if the arresting officer reasonably believes the car might contain evidence relating to the offense for which the driver was arrested.

In the Gant case, Gant was arrested in his driveway for driving with a suspended license.  He was arrested, cuffed and placed in the back of the police car.  The arresting officers then searched Gant's car and found cocaine. The Court ruled that the seizure of the cocaine was illegal because the officers had no right to search Gant's car.  Gant had no access to the car, and the officers could not reasonably believe that a search would yield evidence relating to the offense of driving with a suspended license.

Beyond the rule that it establishes, the Gant case is noteworthy for a couple of reasons. First, it overrules decades of lower court rulings that had led police to believe that they had carte blanche to search cars after arresting their drivers.  A second noteworthy aspect of Gant consists of the unusual grouping of justices who formed the 5-to-4 majority.  Justices Scalia and Thomas, who are often aligned with conservative views, formed part of the majority.  Meanwhile Justice Breyer, often aligned with liberal views, was one of the dissenters.  If nothing else, it's always refreshing when justices don't slavishly adhere to predicted, partisan viewpoints.         

April 13, 2009

Phil Spector Guilty of 2nd Degree Murder of Actress Lana Clarkson

After months of trial and 9 days of deliberation, a jury convicted music legend Phil Spector of the 2nd degree murder of Lana Clarkson. Spector was convicted of killing Ms. Clarkson in February 2003, just a few hours after they'd met in a nightclub and gone to his home.

The prosecution's evidence was strong. Spector's house was filled with guns, he'd previously exhibited guns during violent efforts to coerce other young women to have sex with him, he'd been drinking heavily on the night of the killing, and moments after Ms. Clarkson was shot, Spector told his limo driver that he'd shot someone.  

The defense's case failed my smell test.  Spector's claim was that Ms.Clarkson found one of his guns and decided that the moment was perfect to commit suicide.  Overlooking for the moment that there was little evidence that Clarkson was seriously depressed or had been trying to kill herself, it doesn't seem reasonable to believe that she would agree to go home with a legendary music producer and then suddenly decide to kill herself. 

By convicting Spector of 2nd rather than 1st degree murder, the jurors evidently accepted that Spector did not invite Ms. Clarkson to his home in order to kill her. The evidence is consistent with a drunken Spector once again becoming enraged when a young woman refused his sexual advances, and then, without regard for whether Ms. Clarkson lived or died, pointed a gun at her and pulled the trigger.  Spector's extreme recklessness, which perhaps took the form of a "game" of Russian Roulette, constitutes "malice aforethought," which is a necessary element of murder.

This was the second time that Spector had been tried for killing Ms. Clarkson. The first trial ended when the jury deadlocked 10-2 in favor of conviction.  The second jury was explicitly instructed about 2nd degree murder, and this additional option apparently produced the unanimous guilty verdict the second time around.

April 7, 2009

Prosecute the Sen. Stevens Prosecutors?

The muck that increasingly envelops the U.S. criminal justice system has spread to prosecutors. In 2008, the government seemingly won a big victory by convicting former Alaska Senator Ted Stevens of corruption.  However, just a few months later, at the instigation of recently-appointed U.S. Attorney General Eric Holder, judge Emmet Sullivan (who presided over Stevens' trial) has dismissed all the charges against him

Prosecutorial misconduct led to the dismissal -- prosecutors failed to turn over documents to Stevens' defense lawyers that contained information that potentially could have undermined the credibility of government witnesses.  The mistake is inexcusable -- any law student who takes a criminal procedure course knows that prosecutors have a Constitutional duty to turn over potentially exculpatory information to defendants.  Judge Sullivan is now considering whether to file criminal contempt charges against some of the prosecutors. 

Ironically, in the recent case of Van de Kamp v. Goldstein, the U.S. Supreme Court decided that prosecutors are "absolutely immune" from civil damages claims for their mistakes. In Goldstein, Justice Breyer stressed the "public trust" that we place in prosecutorial offices.  But Goldstein will not protect Stevens' prosecutors against contempt of court charges.  If they abused their powers, they deserve to experience for themselves Judge Sullivan's wrath -- and his sentencing powers.

April 6, 2009

Peremptory Challenge Mistakes Are No Big Deal

Peremptory challenges allow prosecutors and defendants alike to get rid of potential jurors even though they are legally qualified to serve. The idea is that a party should be able to kick off a few people who give off "bad vibes," even if the party can't prove to the trial judge that actual bias exists.  About the only limitation on the use of peremptory challenges is that they can't be used to discriminate against potential jurors based on race or gender.  

In the 2009 case of Rivera v. Illinois, the U.S. Supreme Court decided that a judge's erroneous denial of a peremptory challenge made by a defendant charged with murder is not a serious enough mistake to justify reversing a conviction. The trial judge denied Rivera's peremptory challenge to Deloris Gomez, who later turned out to be the jury foreperson.  The trial judge denied the challenge because the judge believed (wrongly, so a higher state court later ruled) that Rivera's only basis for trying to kick Gomez off the jury was her gender. However, since Rivera could not show that Gomez was in any way biased against him, and in fact Gomez was legally qualified to serve on the jury, the trial judge's mistake was harmless and didn't justify setting aside the guilty verdict.  

Peremptory challenges are an uncomfortable fit with our largely-rationalistic trial process.  Based largely on intuition and hunches, lawyers can try to seat favorable juries by excusing those who "just don't seem right."  I've heard some lawyers admit that it's time to consign peremptories to the dustbin of history. Excuse potential jurors who are biased or who for some other reason are not legally qualified to serve, and get on with the trial.  That's pretty much what happens in England, and the U.S. may be headed in that direction.