February 12, 2009

Juvenile Court, Adult Corruption

Greed and corruption seem to be the only recent growth industries in the U.S. economy. The latest example involves two Pennsylvania juvenile court judges named Ciavarella and Conahan who allegedly demanded and received kickbacks in exchange for imprisoning youths in facilities run by private corporations.

The judges allegedly raked in $2.6 million without even having to go to all the hassle of operating a Ponzi scheme.  The more youths that Ciavarella and Conahan sent to the private prisons -- and the longer the terms of their imprisonment -- the more government money the prison operators made and the more they'd return to the judges as kickbacks.  Not surprisingly, even kids with clean records who committed the most minor of infractions often found themselves locked up.

Since juveniles charged with crimes have a right to counsel (see In re Gault, U.S. Sup. Court, 1967), you'd think that Ciavarella and Conahan would have been quickly found out. On the other hand, juvenile court proceedings are closed to the public, and perhaps the judges figured out how to dispose of cases as quickly as cattle auctioneers sell off livestock. Whatever means they used, they apparently managed to keep the kickbacks coming for 3 years.

Ciavarella and Conahan have been removed from the bench and have been charged with crimes.  If they are convicted, too bad they won't be sentenced by a judge with a financial incentive to give them the longest possible prison terms.

February 11, 2009

Manslaughter Charges for Poisoned Peanut King?

Peanut Corp. of America owner Stewart Parnell apparently sent email messages urging workers at this plant to ship peanut products laced with salmonella bacteria. So far, 9 people have died and hundreds of others have become ill as a result of eating the company's tainted peanuts.  Confronted with his own messages at a Congressional hearing on Feb. 11, 2009, Parnell declined to answer or even to apologize, and instead invoked his Fifth Amendment privilege not to incriminate himself.

If the government has evidence that Parnell (and perhaps other company officials) ordered the shipment of tainted peanuts, they should go to jail. They should be charged with "involuntary manslaughter". Involuntary manslaughter involves reckless disregard of a substantial risk that results in a person's death. That's precisely what we have here -- Parnell knew or should have known that people who eat salmonella-filled peanuts can not only become ill, they might die.

Over the last few years, we've seen a steady parade of criminally rapacious company executives willing to sacrifice their companies' and workers' futures in order to line their offshore bank accounts. Apparently, Parnell and Peanut Corp. of America have gone even further and sacrificed their customers' lives.  If that's what happened, they should be charged with manslaughter. I wonder if their prison meals will include peanut butter and jelly sandwiches?

February 5, 2009

Crime Labs Under the Microscope


Forensic specialists in crime labs match fingerprints, perform DNA analysis, link bullets to weapons, and perform other essential functions of scientific police work. Their accuracy and efficiency is vital to the effectiveness of our criminal justice system. If they screw up, innocent people are convicted and guilty people go free.

Sometime this month, the National Academy of Sciences will release a report blasting the quality of forensic testing in U.S. crime labs. Technicians, many among them employed by police departments, are often poorly-trained and exaggerate the accuracy of tests when defending their results in court. Moreover, the lack of standards for training technicians and carrying out forensic tests means that labs can differ greatly in quality. It's not a pretty picture, and clearly it conflicts with the glorious images of forensic scientists as shown in popular TV shows.

The forthcoming report's attack on the quality of crime labs is the Academy's broadest call yet for reform. A few years ago, a previous report knocked the pins out from under a testing technique known as "bullet lead test analysis". The FBI at one time claimed that each box of bullets had a unique chemical "signature" and that it could use these signatures to determine whether a particular bullet came from a particular box of bullets. Hundreds of people were convicted partly on the basis of such forensic evidence before the Academy demonstrated that the testing method was invalid.

Any reforms that the latest report calls for will undoubtedly be costly to implement and will not be accomplished overnight. As for the present, you can bet that the report will stimulate criminal defense attorneys to more vigorously attack the accuracy of forensic test results with this new ammunition.

January 29, 2009

Blagojevich: One Trial Down, One to Go

While our country has in recent years sent many soldiers to their deaths in an effort to bring the blessings of democracy to foreign nations, many home-grown politicians have done their best to prove that democracy is no guarantee of honest and competent leadership. Illinois Rod Blagovejich is the latest to fall, as the Illinois Senate voted 59-0 to remove him from office.  Blagojevich broke the law by trying to profit personally from his power as Governor to name a successor to President Obama as a Senator from Illinois. 

At least Blagojevich's removal from office means that he will have time to work on his defense to the federal corruption charges that he still faces.  If he hopes to stay out of prison, he'll have to do a lot better than his embarrassing tirade before the Illinois Senate in which he argued that he didn't do anything wrong, he'd just engaged in "politics as usual". Sadly, judging by contemporary political standards, he may be right.

Actually, Blagojevich may not be all that anxious to avoid prison. If he wants to get together with other former elected officials and talk politics all day long, prison is surely the place to be.   

January 14, 2009

Herring v. U.S. : Police Mistakes Don't Always Require the Exclusion of Evidence

As dedicated readers of my blog are aware, the case of Herring v. U.S. involved Herring's argument that illegal drug charges should be dismissed because the police seized the drugs improperly. The officers who arrested Herring and found the illegal drugs had been told that there was a warrant out for Herring's arrest -- this information was wrong; the warrant was no longer valid. Because of this mistake, argued Herring, the officers had no right to arrest or search him, and the 4th Amendment's prohibition of illegal searches and seizures requires that the drugs be excluded from evidence..   

As I correctly predicted in the earlier blog, the U.S. Supreme Court ruled that the drugs were admissible in evidence. The mistake was an isolated instance of careless record-keeping rather than a reckless exercise of police powers. This type of error should not result in the exclusion of evidence, the majority ruled.

The case signals the continuing debate about the scope of the 4th Amendment. The justices in the majority stress the danger of allowing guilty and sometimes dangerous criminals to go free based on minor police mistakes. The justices in the minority stress that the exclusionary rule protects civil liberties, and that strict application of the 4th Amendment can deter police mistakes. Since this was a 5-4 decision, you can bet that the debate will continue.

January 13, 2009

Leaner, Meaner Juries?


Are fat jurors prone to favoring defendants? So claimed a New York prosecutor a few years ago, who challenged an obese juror's impartiality and kicked her off a jury panel on the ground that fat people are biased towards defendants. The problem is that both the potential juror and the defendant were African-American, and the juror's dismissal resulted in the defendant being tried and convicted by an all-white jury.  

Lawyers are not allowed to exclude jurors based on their race. When claims of race-based challenges arise, lawyers have to offer "race-neutral" explanations for excluding jurors. Trial judges are supposed to evaluate the explanations to make sure that they are not meaningless pretexts. In the case now pending in federal court, the trial judge accepted the prosecutor's explanation and an appeals court has asked another trial judge to reconsider the validity of the challenge.

I doubt that a link between weight and defense-mindedness has ever been scientifically established. But the right of lawyers to challenge and exclude potential jurors is based on their ability to use their intuition and personal experience to exclude people they believe will side with their adversaries. If courts go too far in demanding that lawyers prove that challenges are based on proven facts, they will undermine one of the tenets of our lawyer-centric adversarial system.

January 6, 2009

Life Sentences for Juvenile Criminals?

In the case of Roper v. Simmons (2005), the U.S. Supreme Court ruled that the death penalty cannot be imposed on juvenile offenders. The next logical issue is whether juvenile offenders can be given an LWOP sentence -- that is, a sentence of Life Without Parole.

LWOP sentences for adult offenders are routine.  The availability of LWOP, and the realization that LWOP sentences are strictly enforced, have undoubtedly contributed to the reductions in the number of adult offenders sentenced to death in recent years.

But should teenage offenders, even those who have committed heinous crimes, have to spend the rest of their lives in jail?  In Roper, the Court emphasized that youthful offenders are less blameworthy than adults because they lack maturity and are more subject to negative peer pressure than adults.  Should these same factors lead to a conclusion that LWOP sentences are as invalid as death sentences for juvenile offenders?  International law and a handful of states already forbid LWOP sentences for juveniles.  Surely it won't be long before the U.S. Supreme Court is confronted with deciding the issue.

December 18, 2008

Bitemark Evidence Needs Orthodontia


Bitemark evidence is a tool that prosecutors sometimes use to connect defendants to crimes. The testimony of a bitemark expert (who carries the fancy, jury-impressing title of "forensic odontologist") usually goes something like this: "I compared the teethmarks found on the victim's right arm with the defendant's dental prints.  In my opinion, a match exists; the defendant was responsible for the teethmarks." 

Though judges routinely admit bitemark testimony, recent studies have undermined its reliability.  Unlike the generally-accepted principle that fingerprints are unique, the uniqueness of dental patterns has never been established. Moreover, bitemark experts usually have to base their conclusions on fragmentary patterns -- say, the marks left by a few teeth. Finally, the proficiency of bitemark experts is uncertain because they have never been scientifically studied.  Thus, it's no surprise that a number of defendants who have been cleared by DNA analysis after they have begun serving their sentences were convicted partly on the basis of mistaken bitemark evidence.

In the future, criminal defense attorneys will no doubt more aggressively challenge the admissibility of bitemark evidence. As "gatekeepers," judges have to remember that prosecutors who want to rely on bitemark evidence have the burden of establishing the reliability of its underlying principles.  If they cannot do so, judges should disregard the fancy trappings of forensic odontologists (advanced degrees, publications, professional associations, good molars) and tell them to bite the dust.

December 10, 2008

The U.S. Supreme Court Considers Whether the Constitution Requires Forensic Lab Experts to Testify at Trial

In the 2004 "Crawford case", the U.S. Supreme Court interpreted the Sixth Amendment's Confrontation Clause to require prosecutors to present live witnesses rather than hearsay whenever the hearsay was "testimonial." The decision has given rise to lots of commentary and court opinions (many of them conflicting) about whether particular types of hearsay are testimonial.  For example, if a domestic violence victim makes an emergency call to a 911 operator, the victim's statements are likely not to be testimonial, meaning that prosecutors can, if necessary, offer a transcript of the call into evidence if the victim refuses to come to court and testify.  On the other hand, if the domestic violence victim talks to a police officer once the emergency is over, the victim's statements are testimonial. If the victim refuses to testify, the prosecutor cannot call the police officer as a witness to testify to what the victim said.

One of the elephants in the Confrontation Clause room is whether lab reports are testimonial.  Every day, hundreds of doctors and other technicians conduct autopsies, test substances to determine whether they are illegal drugs, determine the alcohol context of blood or urine, etc.  They prepare reports of their findings and before Crawford most courts routinely admitted these reports into evidence at trial under long-established hearsay exceptions for business or official records. But if these reports are testimonial, defendants would have the right to insist that the report preparers testify in person.  The ramifications of such a result are potentially huge. If forensic experts have to testify, at the very least trials become longer and lab backlogs will continue to grow because experts who are testifying (or, more likely, waiting to testify) are not conducting tests.

Sometime in early 2009, the U.S. Supreme Court will likely issue an opinion addressing these issues.  The case is Melendez-Diaz v. Massachusetts, and the Court heard arguments in the case in November 2008.  Forensic lab reports certainly look testimonial in that they are prepared by government officials who usually are aware that they may be offered into evidence at trial.  Prosecutors counter that lab reports are not testimonial because they are objective, especially since many of them are simply machine-generated.  Prosecutors also argue that if defendants really want report preparers to testify, the defendants can call them as their own witnesses.

The outcome of Melendez-Diaz is likely to have a huge impact on the day-to-day functioning of the criminal courts.  My prediction: Since the Supremes have been Confrontation Clause-happy, they will rule that most lab reports are testimonial.  

December 1, 2008

Convicting Date Rapists and Domestic Abusers: Women May Be Their Own Worst Enemy

Date rape and domestic violence are two of the most serious crimes in which the victims are almost always women. Yet the conviction rate of the perpetrators of these violent acts is abysmally low. Unfortunately, the all-too-frequent behavior of the victims of these crimes contributes to the low conviction rate.

As I mentioned in an earlier post, women who have been subjected to domestic violence very often refuse to cooperate with police and prosecutors. For example, they may recant earlier complaints, or simply disappear when their attackers are put on trial. And recent changes in evidence rules make it almost impossible for prosecutors to win convictions unless abused women appear at trial and describe what happened while under oath.  

As for date rape, a recent study, as reported in Self magazine, indicates that when a woman has known her alleged assailant for less than 24 hours, 43% of rape trials end with convictions. However, when a woman has known her alleged assailant for more than 24 hours, the conviction rate falls to 35%. By contrast, the conviction rate in so-called "stranger rape" cases (when a woman has had no prior contact with her alleged attacker) is 68%.

What type of female behavior contributes to the low conviction rate in date-rape cases? Often, date rape victims fail to report the crimes immediately to the police, nor do they go to a hospital for a rape exam and toxicology test. Moreover, in date rape situations the women have often been drinking alcohol shortly before the alleged rape occurred. Finally, in some cases, women have even gone out on post-rape dates with their attackers (perhaps hoping for an apology, or to validate their suspicion that they had been raped on the earlier occasion). Needless to say, defense attorneys can emphasize these types of behavior when arguing that there's reasonable doubt that a rape took place.

The victims' behavior that makes it difficult for prosecutors to convict domestic abusers and date rapists may be psychologically understandable. For example, domestic abusers may  silence victims with threats of future violence, and date rape victims may be in denial before they are ready to report what happened. Nevertheless, under the glare of the adversary system, these types of behavior are powerful impediments to conviction.

November 19, 2008

Herring v. U.S.: The 4th Amendment Is Back in the Supreme Court

The 4th Amendment prohibits unreasonable searches and seizures by government officials. What should happen when police officers violate the 4th Amendment has been one of the most enduring legal sagas of the past 50 years. In Mapp v. Ohio (1961), the U.S. Supreme Court adopted the "exclusionary rule" that improperly seized evidence is not admissible at trial. Because the exclusion of improperly seized evidence may mean that charges have to be dismissed, critics of the exclusionary rule have argued that "the culprit should not go free just because the constable blundered." However, the Court in Mapp thought it more important to deter improper police behavior, and thought that an exclusionary rule would remove the incentive to seize evidence improperly.

Though the court has never overturned the exclusionary rule, it has from time to time limited its scope. One limitation is known as the "good-faith exception" to the exclusionary rule. What this exception boils down to is that evidence seized in violation of the 4th Amendment is admissible at trial if the police acted in good faith on information they reasonably believed was accurate. 

In November 2008, the Court heard arguments about the scope of the good-faith exception in the case of Herring v. United States. Here's what happened: A police officer arrested Herring after being informed that the sheriff's office of a nearby county had a warrant out for Herring's arrest. The officer searched Herring and found illegal drugs and a weapon. A few moments later, the sheriff's office called back to say "Oops -- our bad. A while back we did have an arrest warrant out for Herring, but not anymore." Had the arresting officer known that no warrant existed, he would have had no right to arrest Herring or search him. Nevertheless, based on the officer's good-faith belief that he did have a right to make the arrest, the drugs and weapon were deemed admissible in evidence and Herring was convicted.

Herring argues that the good-faith exception should not apply to his case because the wrong information was given out by a sheriff's office. Thus, the police were responsible for the "chain of error." Moreover, failure to apply the exclusionary rule will only encourage sloppy police record-keeping. The government responds that an "isolated and negligent" clerical error is not a valid basis for excluding evidence. Moreover, upholding Herring's conviction will not encourage sloppy record-keeping because police agencies have lots of reasons to maintain proper records. For example, improper arrests can subject officers to civil rights lawsuits.

Will the Court apply the good-faith exception to the officer's conduct and affirm Herring's conviction? The trend of decisions suggests that the answer will be, "Yes." Recent 4th Amendment opinions have stressed the increased professionalism of police agencies -- with citizen review boards -- and hence less need for a broad exclusinary rule.  We should have an answer from the Court by early 2009.

November 12, 2008

Guns for Spouse Abusers

In 1996, Congress expanded an existing law so that people convicted of misdemeanor domestic violence could not own guns. In November of 2008, the U.S. Supreme Court heard arguments in the case of United States v. Hayes, which requires the Court to interpret the expanded law.

As it happens, only a few states (including California, Illinois, Michigan, and Ohio) have laws that specifically criminalize domestic violence. In other states, domestic violence is illegal under their general laws outlawing assault and battery. Under such a law, Randy Hayes was convicted only of misdemeanor battery in 1994 after beating up his then-wife. A decade later, the police came to Hayes' home after receiving another domestic violence call. When the police found out that Hayes owned guns, Hayes was charged with and convicted of violating the 1996 law forbidding perpetrators of misdemeanor domestic violence from owning guns.


Hayes argues that the 1996 law does not apply to him, because he was convicted of misdemeanor battery, not of "domestic violence". A federal court of appeals in Virginia accepted this argument and set aside Hayes' conviction. The correctness of that ruling is now before the Supreme Court.

The Justice Department, seeking to uphold Hayes' conviction, argues that Congress clearly intended to prevent people like Hayes from owning guns. Furthermore, the Court shouldn't be swayed by the fact that Hayes was convicted only of a misdemeanor. He seriously beat his then-wife, but as in many domestic violence cases was allowed to plead guilty to a misdemeanor. (Prosecutors are often forced to allow domestic violence perpetrators to plead guilty to reduced charges because the victims refuse to cooperate.)

If the Court upholds Hayes' argument that the 1996 law's gun ban does not apply to him, Congress might re-write the law. A re-written law might outlaw gun ownership by all persons convicted of misdemeanors based on acts of domestic violence. Or, states that do not currently have such laws on their books might enact laws specifically outlawing domestic violence. In either event, the politicians will probably face opposition from the Gun Lobby. For example, the 2nd Amendment Foundation argues that "the right to own a gun shouldn't be taken away over a misdemeanor". I'm sure that thousands of domestic violence victims, as well as the families of the many cops who have been shot and killed while answering domestic violence calls, would disagree.

November 9, 2008

DNA and NIJ Go After Burglars


If only from watching TV shows like "C.S.I.," most of us know that police agencies often rely on DNA analysis to identify the perpetrators of a crime. Of course, TV programs typically focus on bloody, violent crimes; how many viewers would tune in to watch police officers track down jaywalkers?

TV images notwithstanding, in everyday life property crimes such as burglary are far more prevalent than violent ones. The good news, according to a report funded and recently released by the National Institute of Justice (NIJ), is that DNA analysis can also be an effective tool for solving  property crimes.

The NIJ study focused on 5 different police agencies and compared the results of burglary investigations that used only traditional police practices like fingerprint comparisons with the results of investigations in which the agencies also collected and analyzed DNA evidence. DNA emerged as the big winner. For example, when police agencies relied only on traditional methods of investigation, they identified the perpetrators in only 12% of the cases. When they also used DNA analysis, the agencies were able to identify perpetrators in 31% of the cases.

Part of the study's good news was that police officers were just as good at collecting evidence suitable for DNA analysis as forensic technicians. This means that police agencies thinking about expanding the use of DNA analysis to burglary may not have to spend as much money on white lab jackets as they feared.

Nevertheless, the obstacles to using DNA evidence to solve property crimes are considerable. Existing forensic laboratories aren't sufficiently funded to meet the demands for DNA analysis that have already been placed on them. For example, the LAPD has acknowledged that it has a massive backlog of unexamined DNA evidence from violent crimes and that it was uncertain of its ability to find the funding needed to reduce the backlog. And DNA analysis isn't cheap. According to the NIJ report, the average cost of using DNA analysis to arrest burglars who would not have been arrested through the use of traditional police methods was $14,169 per case.

Unless governments are willing to make huge increases in police agency budgets, any use of DNA analysis to solve property crimes will mean a reduction in the use of DNA analysis to solve violent crimes. Thus, while the report's findings were impressive, there's little likelihood that DNA analysis will become a major tool for solving property crimes anytime soon.

November 6, 2008

Phil Spector On Trial for Murder -- Again

About a year after a previous jury was unable to decide whether rock and roll legend Phil Spector murdered Lana Clarkson, Spector went on trial again in Los Angeles in Nov. 2008. Some of the facts are clear: An inebriated Spector met Clarkson at a late night club and she accompanied Spector to his large home in a limo. Shortly thereafter, a gun was fired and Clarkson was dead. Spector is the only person who may know exactly what happened, and he did not testify at the first trial and presumably will not do so in the retrial. The prosecution contends that Spector, who owns a variety of guns, shot Clarkson in a drunken rage after she refused to sleep with him. The defense contends that Clarkson was depressed, got hold of one of Spector's guns, and committed suicide.

No matter what version of the story is accurate, it is sad and tragic. One type of evidence, however, relates squarely to the issue of what constitutes a fair trial. A long-standing rule of trial forbids prosecutors from offering "character evidence," or evidence offered in order to attack defendants' character. The rule is epitomized by the familiar phrase that "we judge the act and not the actor." The no-character-evidence rule forbids prosecutors from offering evidence of defendants' past crimes and other misdeeds, simply to show that "the defendant is a bad guy and is just the sort of person who would have committed the charged crime."

Despite this general rule, the judge in Spector's first trial allowed the prosecution to call women to testify that a drunken Spector had assaulted them with guns, usually following their refusals to sleep with him. (The assaults stopped short of actual gunshots.) The judge in the retrial will probably allow the jury to hear the same evidence. 

Does evidence of Spector's prior assaults constitute character evidence?  If so, the judge should not allow the jury to hear the evidence. However, the rule barring character evidence is subject to a number of exceptions. The exceptions are called "non-character grounds of admissibility." For example, if the defendant's prior misdeeds are unique and nearly identical to a charged crime, the judge may allow evidence of prior misdeeds on the theory that they are not admitted to show the defendant's character, but rather to prove that all the acts were committed by the same person. Even if a defendant's prior misdeeds are neither unique nor identical, a judge may allow a jury to hear of them as evidence of a defendant's intent or motive.

The issue of whether prior misdeeds constitute character evidence and are therefore inadmissible, or are admissible on a non-character theory, can be one of the most important decisions a trial judge has to make. Prior misdeeds have the potential to strongly and unfairly bias a jury against a defendant. At the same time, a judge's failure to recognize a legitimate non-character ground of admissibility denies the prosecution legitimate and often powerful evidence of guilt.

In Spector's retrial, lacking eyewitnesses, the prosecution no doubt hopes to persuade the jury that Spector's prior assaults constitute strong evidence of guilt.

October 30, 2008

Sen. Ted Stevens Finds Appeals Suddenly Appealing

Sen. Ted Stevens, an Alaska Republican Senator since 1968, was convicted by a jury of seven felony charges on Oct. 27, 2008. The felonies all involved corruption.  Stevens accepted huge gifts from oil corporations, but never bothered to report them.


Echoing the reactions of multitudes of convicted felons, Stevens immediately proclaimed his innocence and called the jury's verdict unjust. He blamed the verdict on prosecutorial misconduct and vowed that he would get it overturned on appeal. Blah, blah, blah -- so say all the powerful hypocrites like Stevens when they finally get caught.

What's particularly delicious about Stevens' professed faith in the appellate process is its newness. In fact, Stevens wasn't always such a big fan of appeals. Back in the mid-1990s, Stevens voted to limit the right of state court prisoners sentenced to death to appeal their convictions. Isn't it too bad that prisoners sentenced to death don't have the right to vote on Stevens' right to appeal?

Prior to his conviction, Stevens had gained notoriety for championing fiscal conservatism while earmarking huge sums of taxpayer money for pet projects that would benefit big Alaska donors. The most famous of these earmarks was the so-called "Bridge to Nowhere," a ridiculously expensive project that would have reduced the travel time between two sparsely populated villages in Alaska.

Stevens' conviction may indicate that he never quite got that earmark fiasco out of his mind. When he comes up for sentencing in January of 2009, Stevens may find that he has built a Bridge to Prison.