June 2009 Archives

June 26, 2009

Melendez-Diaz Raises the 6th Amendment's Price Tag


Melendez-Diaz v. Massachusetts, decided by the U.S. Supreme Court on June 25, 2009, is the latest salvo in the Sixth Amendment Wars.  Since 2004, one of the most divisive issues the Court has faced has concerned the meaning of the 6th Amendment's "Confrontation Clause."  So far, the Scalia-led majority insisted that the prosecution produce live witnesses instead of hearsay, and Scalia carried the day again in Melendez-Diaz.

The case involved the admissibility of certificates prepared by government lab technicians and stating under oath that the powder that police officers had seized was cocaine.  The prosecutor offered the certificates into evidence in lieu of calling the lab technician who had performed the test, and the Court ruled that doing so violated the 6th Amendment and invalidated the conviction.

The decision has the potential to make drug prosecutions too costly to pursue.  Many testing labs are already hard-pressed to keep up with the demands for test results.  If the technicians who carry out the testing also have to sit around courthouses waiting to testify, the backlogs will grow longer. The costs of the decision may be prohibitively high in rural states, where only one or two labs run tests for the entire state.  And when substances are sent to the FBI in Washington, D.C. for testing, Melendez-Diaz requires technicians to travel all over the country to testify regarding test results that they probably can't recall -- other than by looking at their certificate, anyway. 

A spokesperson for a national DIstrict Attorneys organization calls the decision a "train wreck" for prosecutors, and he may be right.  However, Justice Scalia has the mind-set of a junkyard dog when it comes to the protection of his 2004 Crawford decision To paraphrase an old homily, Scalia seems to believe that it is better that 99 defendants go free than one bit of hearsay escapes the 6th Amendment.              

June 18, 2009

Prisoners Do Not Have a Right to DNA Tests

Whenever possible, the criminal justice system looks to DNA testing to convict the guilty and exonerate the innocent. In some cases, DNA testing has exonerated prisoners who were wrongly convicted and imprisoned years earlier.

Not surprisingly, prisoners are increasingly demanding DNA testing.  However, in a case entitled District Attorney's Office v. Osborne (2009) the Supreme Court ruled that the Constitution does not require that prisoners be given access to DNA testing.

Osborne is unlikely to make a dramatic impact, since all but 4 states already authorize DNA testing for at least some prisoners. And given the backlog existing in many DNA testing labs, a decision that prisoners had a right to have DNA tests performed might have created a huge priority conflict between pending cases and closed cases.

June 17, 2009

A Second Review for the Second Amendment

In its 2008 Heller decision, the U.S. Supreme Court decided that the Second Amendment gives individuals a personal right to keep and bear arms.  But Heller didn't decide whether the Second Amendment affects state and local gun control laws, and lower court decisions decided since Heller have reached conflicting results.  Thus, look for the U.S. Supreme Court to issue another major gun control ruling later this year or in 2010.

You'd think that the issue would trouble political conservatives, including those who are Supreme Court justices.  They are generally for states' rights, meaning that they support the power of states and localities to determine policies for themselves.  But most are also for gun rights, and a decision that the Second Amendment applies to the state and local governments would impinge on their ability to determine gun control policies for themselves. 

I'm guessing that the conservative justices' antipathy to gun control will outweigh their mantra that States Know Best.  Look for a decision that the Second Amendment applies to all gun control laws.  Such a decision would guarantee lots of future court activity, as judges will be called upon to decide which gun control laws the Second Amendment allows.

June 10, 2009

Stephanie Lazarus' DNA

The label "cop killer" usually denotes people who kill police officers. In a strange twist, the label may also fit LA police detective Stephanie Lazarus. Lazarus is charged with murdering Sherri Rasmussen in 1986.  Lazarus was a cop in uniform at the time she allegedly killed Sherri in a jealous rage because Sherri married Lazarus' ex-boyfriend.

The detectives assigned to investigate Sherri's murder ignored all the evidence suggesting that Lazarus was the killer.  Lazarus was not arrested until 2009, after new "cold case" detectives used DNA to link Lazarus to the murder.

To obtain a sample of Lazarus' saliva, an LAPD cop secretly followed Lazarus to a convenience store and took a plastic utensil that Lazarus had just used from a trash bin.  (Police work can be so glamorous!)  But here's my question: Shouldn't it be standard procedure for police agencies to have DNA profiles for all police officers in their files?  Once the cold case detectives realized that Lazarus was a suspect in Sherri's killing, they should have been able to search their files rather than a convenience store's trash to obtain Lazarus' DNA.

A secondary question concerns the retirement benefits currently being collected by the inept detectives who ignored the clues pointing to Lazarus as the killer.  Can these detectives be demoted retroactively?  They decided that Sherri's killer was a burglar, even though all that was missing from Sherri's home was her marriage license and her car.  How awful for Sherri's relatives to know that Sherri's killer remained free only because LAPD detectives didn't care enough to look for her.      

June 4, 2009

SEC Foreclosing on Mozilo

The SEC (Securities and Exchange commission) has brought civil fraud charges against Angelo Mozilo, the former CEO of Countrywide Financial Corp. The SEC seeks to penalize Mozilo for his alleged fraudulent sale of millions of dollars worth of Countrywide stock. It turns out that Mozilo sold most of his Countrywide stock just before (unknown to the public) Countrywide share prices were about to go in the toilet and the company was on its way to oblivion. The SEC also wants a court to order Mozilo to give back his allegedly ill-gotten gains.

Mozilo's defense will no doubt be that no fraud was involved because he sold his shares pursuant to a pre-arranged plan. A law hideously numbered 17 C.F.R. Sec. 240.10b-5-1(c)(1)(i)(A)(3) allows company big-wigs to insulate themselves from "insider trading" charges (charges that they sold stock based on inside information not available to the general public) by setting up plans for selling a certain number of shares on certain dates.  If Mozilo set up a stock sale plan and stuck to it, his stock sales may have been miraculously well-timed (for him) but not fraudulent.

Based on published reports, there seems little doubt that Mozilo did set up a plan to sell his Countrywide shares.  But it also seems that the plan was no more solid than many of the disastrous mortgages that Countrywide had been peddling to unsuspecting investors.  Mozilo's plan apparently accelerated as Countrywide's stock approached worthlessness. So now it's up to the courts to decide whether Mozilo was incredibly lucky, incredibly greedy, or incredibily fraudulent.  Perhaps he was all 3.

June 1, 2009

Deepening the DNA Pool

You undoubtedly know that when suspects are booked into jail, they are fingerprinted and photographed. Now they may have to provide a DNA sample as well.

At one time, the government could collect DNA samples from suspects only after they had been convicted. However, in an effort to expand the pool of available DNA samples, the U.S. Congress enacted the "Violence Against Women and Department of Justice Reauthorization Act of 2005'' (PDF). This federal law authorized the taking of DNA samples from suspects who had been arrested for felonies. The DNA samples will of course remain in government files even if charges are dropped or suspects are found not guilty.

Defense lawyers have argued unsuccessfully that collecting DNA samples from felony arrestees is an unconstitutional invasion of privacy. Judges have responded that since DNA testing is routine (often consisting of a swab or a simple blood test), the intrusion on privacy is minimal. Collecting DNA samples also does not interfere with a suspect's privilege against self- incrimination, since that constitutional right protects suspects against having to provide the government with testimonial evidence but not against having to provide physical evidence.

Should there be any restrictions on the government's right to collect DNA samples? For example, if the federal law were broadened to allow the government to collect DNA samples from suspects arrested for misdemeanor offenses, would it still be valid? For that matter, why wait until people are arrested to collect DNA samples? If the idea is to have the broadest possible DNA database available to identify the guilty and exculpate the innocent, should DNA samples be collected from everyone at birth? The DNA pool is getting deeper, and at this point, its ultimate depth is uncertain.