Waco Criminal Law Blog

The Forensic Science Community Response

Walter Reaves — Sat, 27 Feb 2010 10:01:33 -0600

I really wanted to attend the annual meeting of the American Academy of Forensic Sciences last week. It wasn't just the presentations - I wanted to see the reaction to the "takedown" by the NAS report. By now everyone knows that report pointed out problems - some severe - with everything except DNA evidence. I expected an attack on the NAS report itself. Instead, it appears most agree with the substance of the report, and agree their are problems.

The them of the conference was "Putting our house in order", which is telling. According the president-elect a nationwide critique is "long overdue". I was pleased to see that DOJ has already started funding research on fingerprint reliability and fire-debris analysis. Let's hope that goes more quickly than the NAS report - which took almost 4 years to get out

One thing they don't agree with is the recommendation that forensic labs be independent of the police. I don't ever expect that to happen, but that was one of the more important recommendations. Too many problems arise out of close relationship between the police and the labs. That includes context bias - which is interpreting evidence in light of what you expect to find. The only remedy for that is for the scientist to have no information on the case - in other words, they won't know whether they helping or hurting the prosecution.

The jury is still out on what impact all this is going to have on criminal defendants. So far, things don't seem to have changed much. Questionable evidence is still being admitted, many times for no reason other than it has been admitted before. It remains our obligation to challenge the evidence and educate judges on the issues. Who knows what we will accomplish if we keeping pushing.

Judges and a sense of entitlement

Walter Reaves — Wed, 24 Feb 2010 19:38:43 -0600

I don't know what to make of the Court of Criminal Appeal's decision this week to reverse Michael Hood's sentence. Earlier in the week the court was soundly criticized for it's treatment of the affair between the prosecutor and the judge. A cert petition filed in the Supreme Court created great fodder for bloggers. As expected, Scott Greenfield, Jeff Gamso and Grits were among those providing insight. The most interesting post came from Rick Horowitz, who used a lot of **"s to avoid the censors. To me, the most interesting developments was an amicus brief supporting Hood that was filed by 21 former prosecutors and judges. I don't have to tell you how rare it is for a prosecutor to come out in support of a defendant - especially a death penalty defendant.

The Court of Criminal Appeals had done everything it could to downplay the affair; it wasn't really an affair after all, they just got together a few times. Given the court's history, the holding wasn't that big a surprise. What does infuriate me is former Judge Holland's response; she's upset that her reputation is being dragged through the mud - in her mind unfairly. The response isn't that different from Judge Keller's response to her ethics complaint - it was the lawyer's fault.

I don't know why, but it sets me off when I see double standards in play. It seems to be especially prevalent in the criminal justice system. For example, there have been more than a few prosecutors who don't mind going out and drinking to excess, and then driving home. If they get stopped, they would expect special treatment. Instead of empathizing with DWI defendants though, they come into court demanding stiff punishments and refusing to deal. Judges are no different; some get upset if they are someone in their family is treated the same way they treat defendants who appear before them.

Did Judge Holland ever prevent a prosecutor from destroying a defendant's reputation? I seriously doubt it. I also doubt she accepted the all too common excuse that someone else was to blame for their conduct.

The underlying problem in all this is that some in the criminal justice see defendants as different than them. They also may believe they would never be in that situation. In other words, its us versus them. When you see someone as different its easy to treat them badly - you don't even give it a second thought.

I've said before that I sincerely believe we will be judged by how we judge the least among us. Many problems with our criminal justice would be solved it we viewed criminal defendants as our neighbors. Granted, they may have made mistakes, and done some bad things. But so have we all.

The cost of an appeal lawyer

Walter Reaves — Mon, 15 Feb 2010 16:19:31 -0600

If you are indigent you are entitled to an appointed lawyer and free record on appeal. Sometimes there is an issue of whether the defendant is truly indigent. That was the situation in a recent case out of the Texas Court of Criminal Appeals - McFatridge v. State.

The defendant was convicted of DWI, and requested an appointed attorney to pursue the appeal. The court reporter challenged the indigency affidavit, claiming the defendant had enough money to pay for the $3,000 record. The contest was based on a conversation during trial where she claimed the defendant offered to trade antiques for a copy of the record. (can you guess where this comes from?)

After conducting a hearing the trial court determined the defendant had real property worth $6,670 and personal property worth $3,000 (i.e. the antiques). The court of appeals affirmed that decision, finding the defendant failed to rebut the evidence of indigency. In doing so, the court found that although there was no evidence of what the cost of an appeal would be, it shouldn't exceed $6,670.

There are several interesting things about this case. One is where the court came up with a reasonable fee for a DWI appeal. I'm not sure when the last time any judge on the Court ever handled a defendant's appeal, so where that comes from certainly isn't personal experience. Might some lawyers agree to handle a case for that amount - maybe so. But to obtain representation,they are going to have to exhaust all their assets. Should we require defendants to do that?

The second unusual fact about this case is that it started with the court reporter. Normally it's the court that contests indigency determinations. Here, the court reporter initiated the process - was it to make sure she got the furniture?

Norm Pattis has started a discussion on a universal defender system. I think there is a lot of merit in that. There is no doubt that the middle class cannot afford lawyers for serious crimes. If they can afford a lawyer to represent them at trial, few have any money left to pursue an appeal. Not only do you have to pay a lawyer to handle the appeal, you also have to pay the court reporter. No one should have to choose between appealing a conviction and exhausting all their assets.

The criminal justice only works if you have access to it. I'm not sure you can say Ms. McFatridge truly had access to the justice system - there has to be better way.

When does the State get 3 shots?

Walter Reaves — Thu, 11 Feb 2010 07:54:01 -0600

Many defendants are surprised to learn about the law of parties. The law of parties assigns guilt if you don't directly participate in the offense. Basically, if you do something to aid, encourage or assist the commission of the offense you are guilty. The classic example is the getaway driver in a bank robbery - even though they don't go inside, they are still guilty.

The law of parties is usually fairly straightforward. Of course, any time more than one person is involved there is a potential for problems. The Court of Appeals in El Paso recently addressed one of the problems in State v. Andrew James Cotto and Robertor Corral. The two defendants had been charged along with Joseph Jones with manslaughter. The evidence was that Mr. Corral and Mr. Cotto held the victim down, while Jones strangled him. Mr. Jones went to trial first, and was found not quilty. Although the medical examiner initially testified the death was caused by strangulation, he also testified that asthma or some other respitory condition could not be ruled out as a cause of death.

As you would expect, Mr. Cotto and Mr. Corral were probably pretty happy. They filed a motion to dismiss the charges against them. The legal basis was that the cause of death had already been decided against the State, and therefore the docrtine of "colleteral estoppel" prevented the State from re-litigating the question. Sounds pretty good - and makes sense.

The problem is that the Texas Penal Code - section 7.03 - addresses the issue, at least in part. The state says that the acquittal of the person for whom you are criminally responsible is not a defense. In other words, the fact that the bank robber is acquitted doesn't mean you can't be prosecuted.

I won't go into the legal basis of the decision, because it involves fairly complex (and boring) aspects of colleteral estoppel law. The bottom line is that the State can get 3 chances in this case. They didn't get the person who actually choked the victim - now the get to go after the person who held him down. Maybe they will get at least one out of the three.

100% Authentic

Walter Reaves — Mon, 01 Feb 2010 08:58:13 -0600

Mark Bennett has gone on the warpath against the practice of ghostblogging. His criticism of the "social media" is nothing new - he even started a blog devoted to it at Social Media Tyro. I must admit -until last week I ddn't even know there was such a thing as ghostblogging. I was quite surprised - for a number of reasons.

Since it seems to be a fairly common practice, I wanted to make sure everyone (all 4-5 of you) know that I write this myself. I probably don't need to say anything - you probably already figured out no one would pay for this. But I'l go ahead and claim the credit - everything on here is mine.

What surprises me about ghostblogging is why anyone would do it. I'll admit that when I first started blogging I was hopening to get marketing benefit from it. I wouldn't have done it if I didn't like to write and share information. For the same reason I write articles and lecture at CLE programs. I can't say that I've seen much benefit from a marketing standpoint - probably because I haven't made that a focus. I have enjoyed doing it though - and I think it's been a benefit to me. If I hadn't started blogging I may have never even heard of Mark Bennett.

What I don't understand is how ghostblogging jibes with the whole theory of social media. From what I have read, the idea of blogging is to give clients an opportunity to see how you think and what you know. Aren't you misrepresenting yourself when you use a ghostblogger? You may think you are reading the thoughts of a brilliant lawyer, when in fact they are bumbling idiot. It reminds me of the stories of people who put up someone's else picture on dating sites - big surprise when they actually meet. Imagine the client reading the work product of a lawyer who has used a ghostblogger.

So I quess we now have one more way to decieve potential clients. I love the internet and all the information available to us - but at the same time, you have to be careful what you believe. All I can do is assure is that here you are getting my thoughts - for whatever they are worth.

Any questions now about the Forensic Commission?

Walter Reaves — Sun, 31 Jan 2010 10:10:46 -0600

On Friday the Texas Forensic Commission held their first meeting under new chairman John Bradley. The fact that it was held in Harlingen should have told you everything you need to know. He wanted to make it as inconvenient as possible for people to attend - and it didn't take long to find out why.

Thanks to the Innocence Project the meeting was streamed live over the internet. For those able to stay awake they were able to witness a primer on how to abuse power and hijack a government commission for your own purposes. As usual, we could rely on Scott Benson and Grits for Breakfast for coverage. He has posts here and here.

As you remember, last year the commission was set to hear from Dr. Craig Beyler who had been hired to produce a report on the Cameron Todd Willingham Case. The day before the hearing Gov. Perry removed the chairman, and put Mr. Bradley in his place. His first action as the new chairman was to cancel the hearing. He then started talking about developing rules for procedures for conducting business - in other words, he didn't want to do anything substantive. So after several months we finally have the first meeting under chairman Bradley. He had rules all right - of course he didn't share those with the other members of the commission; no doubt because he didn't want them to have a chance to read them.

Before the meeting there had been a discussion over whether the commission even has the authority to enact rules. Most thought they didn't. The Innocence Project hired a prominent New York Law firm to furnish to an opinion. Their conclusion was that they had no such authority.

As it turns out, Mr. Bradley knew this all along. After forcing the new rules down everyone's throat - and demanding a vote even though they were looking at them for the first time - he acknowledged they weren't really binding. As Capt. Jack Sparrow said about the Code, they are really "more like like guidelines". That's not the only thing he backtracked on. He assured the members that the new rules wouldn't apply to pending cases. After they voted to approve them, he said they would apply to the pending cases. Of course I guess it really doesn't mean much since they are really only guidelines.

Mr. Bradley definitely showed his prosecutorial bent, and pulled out all the tricks. Prosecutors are used to getting want they want. They also control the information, and are prone to demanding decisions without allowing adequate time to consider the options. He certainly got what he wanted here - or did he really get what Gov. Perry wanted?

I have serious doubts that Mr. Bradley came up with those rules on his own. After all, he does have a full time job. The commission so far doesn't have a general counsel, and only has one staff person. So where did they come from? My guess is they came straight from the governor's office - although that is something we will probably never know.

So where does that leave the commission? The idea behind the commission was to create a forum to address problems with forensic science. It started with Williingham - which pointed out the problems with arson investigations. There have also been problems with labs, and individuals. The commission should be a forum to address those issues; to decide if there was a problem, and how to fix it. That has to include what to do in those cases where mistakes have been made.

The Courts are not designed to referee disputes over forensic science. A commission - made up of scientists and lawyers - and without the political pressure judges face, is an ideal forum. A commission can hear from all sides, and consider more than one individual case. Unfortunately, it doesn't look the commission is going to do anything here other than waste a lot of taxpayer money.

I'm not sure what Mr. Bradley has in mind - once they actually get down to business. I have serious doubts that he wants to correct mistakes that have already been made. He has already indicated a desire to be prospective. What's more troubling is the rules he wanted to impose focused only on intentional acts. Most of the problems in forensic science aren't intentional. They are made because people don't know any better. If you address only intentional mistakes you might as well not even look at cases like Willingham - the investigators there were arguably applying the tactics that had been used for years. We now know it was wrong.

The legislature is concerned about this, and there have already been two hearings held. I don't know what the answer is, but I do know It's not the current commission. We would be better off scrapping the whole thing and start over - and save a lot of money in the meantime.

S. Ct. case points out Catch 22 of habeas

Walter Reaves — Tue, 26 Jan 2010 08:13:57 -0600

The Supreme Court recently decided a case which points out the Catch 22 faced by defendants trying to obtain relief through habeas corpus. The case is Wellons v. Hall. Like any good case it has great facts - which of course involve sex. The defendant wanted to explore contacts between the jurors and the judge and bailiff during trial. Apparently the jurors gave the judge a chocolate penis and the bailiff chocolote breasts. They also planned a reunion after trial with the bailff (maybe to make use of the gifts?) Natuarlly, this caused concern for Mr. Wellons and his lawyers.

Mr. Wellons attempted to find out exactly what happened, and got caught up in what the Supreme Court described as a "procedural morass". He tried to raise the claim on direct appeal but it was rejected because there was no record of what happened - fair enough. He then filed a habeas petition and tried to develop the evidence. The court rejected the petition, holding it had already been decided on appeal. Not to be deterred, he sought relief in federal court, and requested an discovery and an evidentiary hearing. He was again denied, the court finding his claim was procedurally barred.

So in the end, Mr. Wellons was denied relief without the court ever actually addressing the evidence. You might find that strange - unless you are familiar with how courts handle habeas claims. Unfortunately, this happens all too often. Defendants are denied the right to develop evidence, and then the claim is denied because you have no evidence.

Mr. Wellons' case ended up as a debate over the Court's GVR (grant, vacate and remand) authority. In the end, a majority of the court vacated the decision, and sent it back to the Court of Appeals to determine whether Mr. Wellons should have been granted and evidentiary hearing. I'll leave that debate and discussion to the law professors. What I find important is the court's recognition of the procedural barriers faced by habeas petitioners.

The majority summed up the problem in a footnote:

Moreover, the allegedly “unequivocal” holding that JUSTICE ALITO quotes was preceded by a discussion of the deference owed under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to the “Georgia Supreme Court’s judgment as to the substance and effect of the ex parte communication.” Id., at 937. This is the classic formula-tion of a decision of whether to grant habeas relief. Indeed, it would be bizarre if a federal court had to defer to state-court factual findings, made without any evidentiary record, in order to decide whether it could create an evidentiary record to decide whether the factual find-ings were erroneous. If that were the case, then almost no habeas petitioner could ever get an evidentiary hearing: So long as the statecourt found a fact that the petitioner was trying to disprove through the presentation of evidence, then there could be no hearing. AEDPA does not require such a crabbed and illogical approach to habeas procedures, and there is no reason to believe that the Eleventh Circuit thought otherwise.

Federal habeas all too oftens involves a perfunctory review of the State court decision. As long as they gave a reason that's not completely off the wall, that's good enough. Maybe the Court wants to remind Courts that review should consist of more than that. I certainly hope so.

Never Mind - Supreme Court sends back confrontation case

Walter Reaves — Mon, 25 Jan 2010 12:50:20 -0600

Last year the Supreme Court decided Melendez-Diaz v. Massachussetts, which held the State had to use a live witness to admit lab reports. The prosecutors immediately starting screaming about how much of a burden that was going to be - they were actually going to have to bring in witnesses to testify. There was some evidence that the decision was having an impact on the trial of criminal cases.

So when the Supreme Court decided to hear Briscoe v. Virgina, most assumed the court wanted to back off the holding, or do away with it entirely. There certainly was no other reason to grant review, since the decision was so new there was nothing that needed to be clarified. The only thing that happened since Melendez-Diaz was decided was that a new justice had been added to the court. Like most defense lawyers I thought the decision was going to be short lived.

You don't need a majority vote to grant review in the Supreme Court. Since Melendez-Diaz was a 5-4 decision, there were already 4 votes to overturn it. If Justice Sotomayor came on board, that would be enough to flip the case the other way.

Briscoe was argued only a view weeks ago. During the argument, justice Scalia wondered why there was any need to review the case. The court answered the question today, holding there was no reason to review the case. They summarily vacted the decision of the Virginia court, and send it back to review in light of the decision in Melendez-Diaz.

So what happened? Did Justice Sotomayor indicate she wasn't voting to overturn such a recent decsion? Did the Court second guess itself and decide it shouldn't overturn a case for no reason other than a change in membership. I'm sure we will never know. What we do know is that least for now Melendez-Diaz is still good law, and the confrontation clause is still alive.

Humiliation as punishment - who wouldn't take that?

Walter Reaves — Thu, 21 Jan 2010 07:41:39 -0600

As you would expect, everyone is commenting on the Master's report on Sharon Keller. Judge David Berchelman found that Judge Keller's conduct was not exemplary, but she doesn't need to be sanctioned because of the humiliation she has been subjected to. At firtst I thought someone was joking - but sure enough that's what he found.

Others have already covered the bases on this, and there is no reason to say the same thing. I do have a couple of observations thought. The first is that he makes an assumption that I'm not sure is correct - he assumes Judge Keller has been humilated. I haven't seen any indication that she has an regrets about what she did - if fact, she has said she wouldn't change a thing (which Judge Berchelman's concludes can't be true). All she has done is attack everyone else. I always thought you at least had to feel some responsibility before you feel humiliated.

If you are a defense lawyer how many times have you made - or seen - this eame argument. My client is a good person who made a mistake, and has already been punished enough. It might be the executive caught with his hand in the till, or the young mother who takes a couple of pieces of jewelry. You know how often that is successful - try almost never. I'm sure Judge Berchelman has heard it thousand's of times - and probably this is this is the first time he has ever bought it. What's the difference between a judge and some other member of the society - doesn't that say something about how judges view themselves in relation to everyone else.

Judge Berchelman aslo says Judge Keller is not responsible for Michael Richards execution. To a certain extent that's true - he probably would have been executed anyway. But he wouldn't have been executed that day. Doesn't that tell you something else how judges view criminal defendants?

If God came down today and told you that technically today was your day, but he might be willing to give you a few more months, what you give for that opportunity? The problem with executions is that they terminate possibilities - we don't know what Michael Richards might have done with his extra time. Maybe he might have done something that impacted another and changed their life for their better. Instead, their life takes a different path. I've lived too long to not recognize the ripple effects we have on others - most of the time we never even know it.

Maybe the humiliation Judge Berchelman is referring to is the effect on the judiciary. There certainly could be some truth to that; but if that is what he was worried about he's made the problem worse.

As I said, others have already covered all the bases on this. My contribution to the debate is to collect those comments here:

Jeff Gamso - Still Fly Free: the Judge Sharon Keller story cont.

Jamie Spencer - "Judge Keller's conduct was not however exemplary of a public servant"

R.J. McReady - Judge Keller should not be punished

Scott Benson - Judge on Sharon Keller - Public Humiliation is Punishment enough

Dallas Criminal Lawyer - Judge Keller = Not exemplary

Changing the standard - what difference will it make?

Walter Reaves — Mon, 18 Jan 2010 10:25:50 -0600

A Texas house committee met last week to discuss changes for handling forensic evidence in court. In typical law professor fashion, a UT professor suggested that Texas adopt the Fry standard, instead of the Daubert standard which is currently used. To his credit, he admitted that the change may not make any practical difference. I concur. BTW - thanks to Scott Benson and Grits for Breakfast for reporting this.

I practice appellate law, and I have a special interest in this. Although I've read the cases numerous times I'm not all that sure what the difference between Fry and Daubert is, and I don't really care. No matter what the standard, the bottom line is that courts are going to admit scienfic evidence in criminal cases. The problem is not the test, but what the courts consider scientific evidence.

My friend - and head of the Innocence Project of Texas - Jeff Blackburn suggested that we reject the test adopted for "soft sciences" - which has been labeled the Nenno test. I agree that has some merit, and maybe thats the best we can hope for. However, I wish we address the question of whether the so called soft sciences should even be allowed in court. In my opinion the term "soft science" should raise a red flag.

I've written before about what science really is. We could solve a lot of problems by limiting scientific evidence to that which is based on scientific principals, and administered by persons with scientific backgrounds - i.e. not police officers. Maybe we could use a test - if two legitimate experts don't agree, its not science.

I know no court is ever going to go this far - and the result is we are going to continue admitting evidence without serious scrutiny. We would much better if instead of worrying about tests, we step back and decide what types of evidence we should admit in cases where a person's life and liberty are on the line.

The battle between good and evil

Walter Reaves — Mon, 18 Jan 2010 09:33:58 -0600

Whenever you mention good and evil the first thing that pops into a lot of people's minds is crime and criminals. After al, criminals are evil and the police and prosecutors are the good guys out to protect society. The whole criminal justice seems to focused on demonizing defendants and ignoring the fact that they are real people. That's not what I want to write about though; what I want to write about is the Massachusetts senate race - specifically, Martha Coakley.

I realize I'm a little late getting this to. I'm from Texas though, and my knowledge of Massachusetts is that its out east somewhere.

So what does a senate race have to do with criminal justice, and the battle between good and evil? Twenty years ago Coakley was involved in the prosecution of the Amirault family for child abuse. It turns out that the charges were instigated and conceived by the State. Everyone was convicted and sentenced to prison. Normally, that is the end of the most cases. Not so here, because the Amirault's lawyer, John Sultan wouldn't give up. He kept at it - probably without payment, and probably at great personal sacrifice. In the end, the case unraveled, and there was tremendous pressure from the public and the judiciary to do something about it.

Here comes the evil. Coakley didn't want to lose face entirely, so she placed Mr. Sultan in an impossible situation. She would agree to reduce the wife's sentence to time served if he would withdraw from representing the husband. Since Mr. Sultan was the only one fighting for them, I'm sure she thought that would be end of it. Mr. Sultan ultimately agreed - probably one of the most agonizing choices he ever had to make.

I wish I could say that's never happened before, but it has. Ms. Coakley had no problems in using another person to further her own career. After all, she was an important person. He was nothing more than a convicted defendant. I don't have the words to express how despicable I think that type of conduct is. So what was her punishment - a stellar career and possible a United States senate seat.

Prosecutors are quick to label defendants as sociopaths - someone who has no concern for others. Someone who is only concerned about themselves. How does that definition not apply to Ms. Coakley in this situation.

There was a battle between good and evil here - Mr. Sultan represented everything that is good about criminal defense lawyers; Ms. Coakley represented everything that is wrong with prosecutors. In my mind - evil won.

Problems with Tarrant County ME's office?

Walter Reaves — Thu, 14 Jan 2010 07:38:03 -0600

I was recently alerted to a situation that so far has been under the radar. David Fisher is somone who appears to be on a one man crusade against ME's offices. You might think he is a little off - but results speak for themselves. So far he has gone after Lubbock County and Travis County, and basically caused the reorganization of both offices. Now he has turned his sites toward Tarrant County.

The Tarrant County ME's office is headed by Nizam Peerwani - who is somewhat of an icon. I doubt there are many criminal defense lawyers who aren't familiar with Peerwani. He vaulted to national prominence when the handled the Branch Davidian autopsies. As far as I knew, his reputation has never been seriously challenged.

The issue Fisher is going after involves the relationship between Peerwani and the County. ME's offices are unusual creatures - created by Texas statutes. The contract with Tarrant County and Peerwani is actually with Peerwani and his professional association. He is paid a fixed amount, and in turns has hired four medical examiners who work for him. Peerwani also has a private firm - that firm does work for other counties, as well as private parties - including defense attorneys.

It appears on paper that there are problems with the agreement between Peerwani and Tarrant County. Is it a problem that defense lawyers and defendants need to be concerned with? - I don't know. Clearly, any times you have financial issues in play, there is the potential for problems. There is always the potential for choosing money over the truth; or at least the potential for cutting corners.

I don't think we have seen the end of this. How much of an impact it will have is something only time will tell.

Does the State have to know about perjury

Walter Reaves — Mon, 11 Jan 2010 18:39:14 -0600

One of the common complaints I see from defendants is that one or more of the witnesses against them committed perjury. That generally means that they didn't testify in a manner favorable to the defendant. A common occurrence is where two witnesses disagree about a particular fact - the defendant claims the unfavorable witness committed perjury.

Perjury does occur - probably with some regularity. But it is one of the most difficult claims to prove. You need compelling evidence to establish that someone testified falsely.

Even if you can establish perjury, the rule has always been that you must still prove the State/government was aware of it. In legal jargon, the claim is the knowing use of perjured testimony, which is a due process violation. A witness may perjure themselves, but unless you can prove the State knew about it, you are generally out of luck.

The Court of Criminal Appeals may have just changed the law on this claim - at least in limited circumstances. The case is Ex Parte Chabot., No. AP-75,940 (12/09/09). Chabot was convicted of murder, and the main witness against him was an accomplice, Gerald Pabst. He claimed he was an unwitting participant, and didn't leave because he was scared of Mr. Chabot. The victim was sexually assauted, and of course Pabst denied having anything to do with that.

Mr. Chabot was able to obtain DNA testing long after he was convicted, and lo and behold it turns out the person who did the sexual assault was Pabst. Therefore, he perjured himself at trial; arguably the state didn't know it, because they believed Pabst when he said he didnt do it.

The court found Chabot's due process rights were violated because his conviction and sentence was "most likely based on perjured testimony." In truth, the only substantive testimony against Chabot came from Pabst.

The court implicitly recognized that if Pabst perjured himself about committing the sexual assault then maybe he also perjured himself about Chabot committing the murder. The case would have been an easy one if Mr. Chabot had been charged with sexual assault. Instead, he was charged with murder, and the court could have easily said that just because he didn't commit the sexual assault doesn't mean he didn't commit the murder. That has been the normal response from the Court in the past, which is one reason why I think this is a significant decision.

The Court's holding is limited, and it probably should be. The convction must be based on the perjured testimony - if it is only a part of the State's case, that is probably not going to be enough.

No matter how limited the holding may be, it is still a step forward for a Court that will never be accused of being defendant friendly. It's also a step forward because its a recognition that innocent people are convicted - something the Court has been reluctant to acknowledge in anything other than slam dunk DNA cases.

The prosecutor's fallacy

Walter Reaves — Mon, 11 Jan 2010 18:14:06 -0600

The Supreme Court reversed the 9th Circuit again in McDaniel v. Brown. As with a number of other cases the 9th circuit found for a defendant in a writ of habeas case, and reversed the conviction. That seems to be the recipe for an almost automatic reversal. The opinion was unremarkable except for the discussion of a concept the Court acknowledged as the prosecutor's fallacy.

Mr. Brown was charged with sexual assault. The victim could not identify him, and the evidence was all circumstantial; the type where it could support innocence just as easily as guilt. The most compelling evidence was DNA recovered from sperm on the victim's panties. And it was the DNA evidence that was the focus of the writ proceeding.

Mr. Brown lived with his brother, and there was another brother that also knew the victim. They all lived in the same trailer park, so it was obvious that there would be an issue as to whether the DNA could be attributed to one of the brothers. The argument was over probabilities; according the State's expert, the probability that another person from the general population would have the same DNA profile was 1 in 3,000,000. The defense expert expert said it was more like 1 in 6,500.

The prosecutor's fallacy is the assumption that the random match probability is the same as the probability that the defendant is the source of the DNA sample. In other words, you cant take that the above statistic and say the probability that someone other than the defendant committed the offense was 1 in 3,000,000; or that there is a 99.9% chance that the defendant is guilty.

In the end, the interpretation of statistics was not critical to the decision. Even with the lower estimates, the evidence was still sufficient to support the conviction. The case does point out the necessity to challenge State's evidence though. You may need a statistician to do it, but that may be necessary to explain what the numbers mean. After all, 1 in 6,500 is a heck of a lot easier to work with than 1 in 3,000,000.

Is History repeating itself

Walter Reaves — Sun, 20 Dec 2009 09:41:34 -0600

I started following the situation in Arizona out of curiousity more than anything else. I'm sure I'm like most lawyers and couldn't imagine a court bailiff going through my file while my back was turned. I'm pretty sure that where I practice the bailiff would be fired immediately. Not so in Arizona with sheriff Joe Arpaio. Not only did he not fire him, he threatened the judge, and started a criminal investigation. The situation has deteriorated quickly, and appears that it is now a battle between the sheriff and the courts and the lawyers - from where I sit it looks like the sheriff has the upper hand.

It probably took me longer than most, but my curiosity has progressed to concerned. Thanks to Rick Horowitz I started thinking about how serious this could become. The problem is that sheriff Joe is enormously popular. His popularity is the result him seizing on people's fears - in this case its fear of immigrants and fear of crime. He has people convinced he is protecting him; I understand he is thinking about running for Governor, and would probably be the favorite.

It's natural for people to be afraid - everyone is afraid of the unknown, and those who are different from them. We all view people like Hitler in hindsight (and no I'm not comparing sheriff Joe to Hitler - at least yet), with knowledge of the evil he did. We forget how he got to the position of power - he seized on people's fears. He was enormously popular in Germany, and successfully convinced everyone that it was them against everyone else - e.g. jews, catholics, people of color, etc.. The world was aware of him for a long time before he finally forced their hand, and made them react. I'm sure the prevailing view was that's something that doesn't effect me; after all, it's clear across the ocean.

In the United States we have seen the influence of the Klan. Seizing on fear of those who are different they convinced the majority that blacks were different, and could be treated differently. The treatment didn't extend to discrimination, but violence.

What can we learn from history? I think it's that we cannot turn a blind eye simply because evil is not right before us. I have always been amazed about how entertwined the Klan and religion were. For the most part they believed they were acting in accordance with God's will, and the bible was part of their beliefs. I'm sure there were many who attended the lynching on Saturday night, and sat in the pews on Sunday morning - maybe as deacons and preachers. The same thing happened with Germany; most denomimations, including the Catholic Church, have acknowledged they could have done far more than they did.

My question now is where are people of conscience - and the church - in Arizona? My guess is they are voting overwhelming for sheriff Joe. They have let their own fears overshadow their beliefs in convictions. They either don't see - or refuse to recognize - the incongruity. The rest of the United States doesn't get a pass either.

Those who profess to believe too often ignore the passage from Matthew where Jesus says we will be judged by how we treat the least among us. (I doubt Christianity has a monopoly on this - I just don't know enough to quote other beliefs). The least among us includes immigrants, and criminal defendants (yes they are people). If you really want to distill that teaching, just assume it applies to anyone who is different.

I often wonder what I would done if I had been alive when Jesus walked the earth. He was clearly a rebel - he was on the outside attacking authority. And those in authority were so convinced they were right they rejected him. I worry that I would have been right there with the Pharisees.

I also wonder whether I would recognize Jesus if he appeared today. I'm sure he wouldn't fit our perceptions of him; he would probably be homeless, and dirty. In short, he wouldn't look like us. I'm pretty sure if Jesus shows up in Arizona he's going to be arrested and living in a tent.

Some of the lawyers in Arizona have had enough, are calling for a rally tomorrow. They know the repercussions; some have already been called in for questioning and threatened with obstruction. Most recently sheriff Joe has threatened to investigate the State bar. Despite that, some brave lawyers are going to stand up and be counted for what is right. I wish I could be there - I will be there in spirit. Let's hope thier example turns the spotlight on what happens - before its too late.

Are prosecutors acting up more?

Walter Reaves — Wed, 16 Dec 2009 08:05:33 -0600

Although I haven't been following the case, it appears the charges against Broadcom founder Henry Nicholas are on the verge of being dismissed. Nicholas and several executives have been charged various offenses. Last week the judge set aside a guilty plea against the former chairman, and co-founder of the company because of misconduct by the prosecutor. Yesterday the judge threw out the charges against Nicholas, leaving only a separate drug charge. It appears that charge may also be headed for dismissal for the same reasons.

It hasn't been that long ago that the conviction of Senator Ted Stevens was set aside for prosecutorial misconduct. So you have at least cases this year where the court has effectively sanctioned the prosecutor for their conduct. Claims of prosecutorial misconduct are nothing new. In fact, its a favorite claim of defendants in post-conviction proceedings. Most of those claims are frivolous, and nothing more than a complaint about the complaint about the conviction. Claims against prosecutors are almost as prevalent as claims against defense lawyers.

What is new is that the claims are being taken seriously - at least in some cases. The standard reaction in most cases has been to sanction the lawyer for making the complaint. Courts assumed there was nothing to them - after all, the prosecutor in their court would never do something wrong. They were out seeking justice - right?

Until recently, I can't remember the last successful claim of prosecutorial misconduct. So what does it mean? Are prosecutors acting worse? Or are courts just more willing to entertain the argument? The bottom line in these cases is the position of the defendants. A wealthy defendant and a senator. Not only do they have money to mount a defense, they also have something most defendants don't have - credibility. Judges can identify with them, and I think are more open to entertain the thought that the prosecution might be based on something other than evidence.

The question remains whether the willingness to consider these claims will extend to other cases. At least the precedent has been set.

Are judges ever going to acknowledge the problems with Eyewitness Testimony?

Walter Reaves — Mon, 14 Dec 2009 07:31:44 -0600

Hopefully by now everyone recognizes the problems with eyewitness identifications - the problem being that they are not always reliable. A substantial amount of research has been conducted, and they all reach the same result. Even the National Institute of Justice weighed in several years and acknowledged the problems, and suggested reforms.

Just how unreliable (or reliable) are eyewitness ID's. No one will ever know the true number. We do know that 75% of the DNA exonerations involved eyewitness IDs. Since DNA is available in only a handful of cases, you have to figure the percentages are pretty high. Some have suggested its roughly 50% - or the equivalent of chance.

We do know there are a number of factors that cause eyewitness IDs to be less reliable. Those include the presence of a weapon, and identifying someone of another race. We also know the manner in which the line-up is conducted has a tremendous influence - the ideal is individual pictures, presented by someone who knows nothing about the case. We also know something about how witnesses view their testimony; most are absolutely convinced they are right. The research is clear that certainty does not equate with accuracy.

So what impact has all this knowledge had on the criminal justice - absolutely none. Only a few states have implemented changes in procedure. More importantly, courts appear to have completely ignored this knowledge.

A recent law review article attempted to study the impact the research has had on judicial decisions. They chose cases where the ID was challenged, and there was no (or little corroborating evidence). In all the cases the defendants were convicted, and appealed. The goal was to determine whether the courts were applying the research in deciding these cases. The answer was an overwhelming NO. Not only were the courts not recognizing the problems with eyewitness, they were using factors that have been soundly rejected. In upholding the identifications a number of courts noted the witness was certain about the identification. A total of 96 cases were studied - all decided within the last year. Relief was granted in only two of those - and that was not based on problems with the ID.

So what does that tell you? According to the author of the article it suggests that innocent people are still being convicted on bad IDs. And it looks like that is not going to change anytime soon.

I think we have to recognize that the general public still sees eyewitness testimony as sound. While they are willing to acknowledge people can be mistaken, they are not willing to say the witness in their case is mistaken. We have all seen cases where the evidence presented by a defendant was almost overwhelming, but not enough to overcome the eyewitness. That means you cannot simply leave these cases to juries.So what's the answer?

The final responisibility is with the courts and the legislature. The legislature needs to mandate changes to cut dowon on the possiblity of error. That's not going to be enough to solve the problem though. Judges still have to do their jobs - that means throwing out IDs in bad cases. They can't simply take the easy road, and leave it the jury. Lawyers also have to keep pressing the issue, and challenging IDs.

So let's get out there and do something.

Did the decision in Beard vs. Kindler decide anything?

Walter Reaves — Wed, 09 Dec 2009 07:49:34 -0600

Yesterday the Supreme Court issued its opinion in Beard vs. Kindler. This was a habeas corpus case. For those that don't know, habeas corpus is an incredibly complex and technical area of the law. Most decisions are based on procedure, and not on the actual merits of the case. If you want a thumbnail understanding of habeas law, just remember that everything is designed to ensure the defendant loses.

Federal habeas law is even more complex and technical. The idea is that State courts should be allowed to decide their own cases. One of the doctrines that has developed to ensure that is the "independent and adequate" concept. Simply put, if the decision is based solely on State law, a federal court will not review it. Most often that doctrine comes up in cases where the State court has decided the case on a procedural basis; in other words, the case was dismissed or rejected for some procedural reason.

Beard vs. Kindler is one of those cases. Kindler was convicted of capital murder and sentenced to death. While his appeal was pending, he escaped. He managed to remain at large for several years, and in the meantime the appeal was denied based on the fact that he had abandoned his claims by escaping. The State court reviewed the case only to determine if there was a basis for imposing the death penalty.

Kindler filed a state writ,which was denied. He then went into federal court. Although the reasons differed, both the District Court and the Court of Appeals addressed the merits of the case, and reversed. If there is one thing that has become apparent over the last several years its that a reversal in a habeas case has a high likelihood of beign reversed by the Supreme Court. So it wasn't a big surprise that the court granted review.

To consitute an independent and adequate basis, the rule must be regularly enforced. In other words, if the State courts only rarely enforce a procedural rule, they cannot argue that prevents the federal court from reviewing the case. The Court granted review in this case on an extremely narrow issue: if the court has discretion in applying a particular rule, does that mean it is not "firmly established and regularly enforced". The court answered that question in the negative, which was fairly obvious to everyone. In other words, the fact that the State court has discretion doesn't end the inquiry.

It is not entirely clear what Kindler's main argument was; it is clear the discretionary aspect of the rule was not the only argument. He also argued the rule applied by the court was not adopted until after his conviction, and therefore was not "firmly established". That would be an exepction, and the court recognized that.

In the end the Court sent the case back to the Court of Appeals to address the remaining claims. The court also refused the State's request to explain the doctrine further, and provide some guidance to the lower courts. The court's reason was that escape was not the "typical" type of default. I guess that means the court is still open to explaining the rules when a more "typical" reason comes before them.

Like the decision yesterday in Michigan v. Fisher I'm not sure this added much to our understanding of habeas law.

As a side note, Kindler is apparently an extremely resourceful criminal. He didn't escape once, but several times. The first time he went to Canada, and became somewhat of a celebrity when he fought extradition. When Canada finally gave in, he escaped again - using 13 stories of bedsheets tied together to do so. He remained on the lam for mor than two years before he was caught again. Oh yeah - he also escaped before his trial. If he llives for awhile, maybe he has a future as a consultant for prison security.

What the heck - Why did the Supreme Court take this case?

Walter Reaves — Tue, 08 Dec 2009 08:24:27 -0600

Every year thousands of people ask the Supreme Court to review their case; the Court agrees to review only a handful. Generally, they will not agree to hear a case unless there is some issue they want to address; they either want to change the law, or maybe clarify. it For the most part, they could care less whether the lower courts reached the right result.

So when the court agrees to hear a case you generally expect some change in the law. The expectations were no different Michigan v. Fisher. The case involved the emergency search exception. Officers had been dispatched to a disturbance, and found a truck with a smashed windshield, damaged windows in the house, and blood on the hood of the truck. The saw Mr. Fisher inside the house - he was throwing things, and had a cut on his hand. The officers tried to enter, but the door was locked. When they asked Fisher if he needed help, he not so politely asked them to get off his property. When when officer tried to push the door open and enter the house, Fisher pointed a gun at him. Entry was eventually made, and Fisher was charged with assault with a dangerous weapon and possession of a firearm.

The Michigan trial court held a hearing, and decided the entry into the house was unreasonable. THe caes went back and forth, but the Michigan Court of Appeals eventually agreed with the trial court and affirmed its decsion. On Monday the Court reversed, and sent the case back to the Court of Appeals.

The unusual aspect of this case is not that the court reversed, but the grounds for doing so. Basically, they held the lower court reached the wrong result. The court didn't set forth any new law, or explain in more detail existing law. The opinion appears to be nothing more than a disagreement with the lower court - a court which found in favor of a defendant.

The court held in 2006 in Brigham City v. Stuart that police could enter a home where there was a "need to assist persons who are seriously injured or threatened with such injury". The court did nothing to explain or alter that holding. In fact they held that a "straightforward application of the emergency aid doctrine" dictates that the entry was reasonable.

So why did the court need to find the officer's actions were reasonable? That is something normally left to trial judges. There was no suggestion the trial judge didn't understand the law, or misconstrued it -he just reached the wrong result in the court's eyes.

I find it interesting that Justice Sotemayor joined Justice Stevens in dissenting. They both felt the court had no business making such "fact intensive" decisions. I don't know if that says much about her views on the fourth amendment, but it does say something about her view of the role of the 'Supreme Court.

In the end, this case did nothing to advance jurisprudence. So why did they waste they time and effort?

Does Society (i.e. jurors) assume everyone is bad

Walter Reaves — Mon, 07 Dec 2009 07:58:00 -0600

The regular college football season is now over; for college football fans like me we now have to find something else to do on Saturdays. There is still the bowl season, and the Heisman race. Unlike most years, the Heisman race is wide open. Until he turned in a horrible peformance against Nebraska my guy - Colt McCoy - was in the lead. Now it's anyone's guess.

This past weekend was not only the last regular season game for McCoy, it was also the last regular season game for Florida quarterback Tim Tebow - who won the Heisman two years ago. For those who don't know, many claim Tebow is the best college football history in history.

McCoy, Tebow, and last years winner - Sam Bradford - all have one thing in common; they appear to be extraordinary young men. They volunteer in their communities, go on mission trips, and have a strong faith. You would think that would be a source of praise - and pride. Instead, it has become a source of criticism. More than a few people have questioned whether the appearance is genuine - in other words, some feel it is just an act.. When Colt McCoy kneeled down with his head down (like he was praying) I'm sure many viewed that as less than genuine.

Obviously I don't know any of those three; I assume - and I hope - that the appearances are genuine. I certainly don't have anything to suggest they aren't.

I don't think this something peculiar to college football fans; instead, it's a reflection of society in general. We have come to the point where we assume everyone is bad or evil. If they appear to be good, it is just an act. If that's true, what does it say about our jurors. We already know that most people think criminal defendants are "different" from them. Obviously they did something wrong, or they wouldn't be where they are - right? Do we have a chance of overcoming those presumptions?

What does that does it tell us. To me, it says that attempting to convince jurors our clients are really good people is probably not going to be effective. We certainly need to try, but don't put all your eggs in one basket. Maybe we need to play off those feelings. After all, police officers and prosecutors are just like everyone else; why should jurors assume they are out doing the right thing.

Recognizing trends is something we have to do, and deal with. You can learn something from everything - even college football.