Criminal Defendants Constitutional Right to Confrontation

June 26, 2009

Your constitutional rights.  The United States Supreme Court tells us what they mean. The latest revelation is Melendez-Diaz v. Massachusetts, an appeal from a conviction for drug distribution.

At the defendant’s trial, to prove that the substance which the defendant possessed was, in fact, cocaine, the prosecution had offered into evidence a report from the chemical lab.  According to Massachusetts law, the report was accompanied by affidavits by the chemists who analyzed the substance called “certificates of analysis.”  In one of these certificates, the signatory swore he or she found the stated results.    But the chemist himself or herself did not appear in court to testify.  Defendant’s lawyer objected to the admission of this evidence at the trial without the defendant having the opportunity to “confront” this witness and cross examine him or her, just like any other witness before the jury.

The Massachusetts procedure provided that such forensic analysis was to be admitted into evidence as prima facie evidence of its conclusions.  That is, the report could be contradicted by scientific evidence offered by the defendant, but, if uncontradicted, that would be the only evidence offered as to the chemical character of the substance.

The Supreme Court decided today that this procedure deprived the defendant of his Right to Confrontation under the Sixth Amendment to the United States Constitution. “Petitioner was entitled to ‘be confronted with’ the persons giving this testimony at trial, ” the Court held.

The Sixth Amendment to the United States Constitution provides:

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Similarly the Oklahoma Constitution provides in Article 2:

§ 20. Rights of accused in criminal cases.
In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed or, where uncertainty exists as to the county in which the crime was committed, the accused may be tried in any county in which the evidence indicates the crime might have been committed. Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses. (emphasis added)

In 2004, the Supreme Court had ruled that the Confrontation Clause really meant what it said in Crawford v. Washington. In Crawford, the defendant’s conviction had been based in part on evidence at trial of the tape recorded statement of a witness made outside court, but the witness was not presented in open court for cross-examination by the defendant. The Supreme Court reversed that conviction

Massachusetts had argued (and all law enforcement with them) that these chemical reports are not “testimonial,” that the witnesses who perform these chemical tests and complete the accompanying affidavits as their test results are not “accusatory” witnesses like eyewitnesses or arresting police officers, and therefore the “Confrontation” provision should not apply to them.  They should not be required  to appear in court.  These witnesses, the respondent argued in this case, were not like the “notorious” ex parte witnesses used to convict Sir Walter Raleigh of treason in 1603 by reading the written statements of witnesses instead of producing live witnesses, the case said to be the source for our England’s and our system’s belief in the Right of Confrontation.  But Justice Scalia noted that the Sir Walter Raleigh case was not the source of the Right of Confrontation but instead its violation in convicting Raleigh was a scandal to the jurisprudence of England because the Right was already well established.

“It’s just too much trouble for our chemists to have to come to court all the time,” runs one of the arguments.  The Supreme Court said, “The arguments advanced to avoid this rather straightforward application of Crawford are rejected.”

Justice Scalia, writing for the majority of the Supreme Court, noted that the “certificates” in the Massachusetts trial were really “affidavits,” condemned in the earlier Crawford decision. Justice Scalia said of the certificates, “They are incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” “The ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’”

The Court noted that the cases involving such “affidavits” had arisen in the last 30 years, since the Court’s 1980 decision in Ohio v. Roberts.  The Roberts case had some language to the effect that unconfronted testimony was admissible so long as it bore “indicia of reliability,” and a number of state supreme court decisions had ruled that such affidavits or certificates did not violation the Confrontation Clause.

The Court noted precedents upholding the Confrontation Clause.  It cited Kirby v. United States decided in 1899.  In that case the defendant had been convicted at trial of receiving stolen property, some of the trial evidence of which was records of convictions of three other persons who were found guilty of stealing the property.

The dissent argued that an honest analyst to forensic tests will not alter his testimony when confronted by the defendant, i.e., just because he has to come to court.  “…The same cannot be said of a fraudulent analysis,” Justice Scalia wrote, noting cases where no analysis was done.   “Like the eyewitness who has fabricated his account to the police, analyst who provides false results may, under oath in open court, reconsider his false testimony.”  And, “like expert witnesses generally, an analyst’s lack or proper training or deficiency in judgment may be disclosed in cross-examination.”

Advertisements

Wrong Facts in Child Molestation Case Give Wrong Results

June 24, 2009

Bill O’Reilly’s “No Spin Zone” told its viewers last week about “an injustice in Oklahoma.”  The story concerns the charge of child molestation in McAlester, Oklahoma, against one David Harold Earls.  O’Reilly stated as fact that a 4-year old girl accused the man of child molestation, and a 5-year old boy corroborated this allegation.  With these as stated “facts”, O’Reilly then gave himself up to outrage that defendant David Harold Earls was sentenced to only one year in prison for this heinous crime, and why didn’t the Attorney General investigate this and why didn’t Governor Brad Henry do something about this and was everyone covering up because Governor Henry went to school with the sentencing judge so it’s an obvious cover-up. That was O’Reilly’s claim, that the District Attorney and the judge should be reprimanded because the result was not fair from the facts of the case.

No doubt child molestation is a detestable crime, and anyone guilty of molesting a 4-year old child deserves more than a one-year sentence.  In this case, defendant Earls received in addition to the one year sentence 19 years on suspended sentence, little difference.  And Earls is predicted to live only for three more years due to illness, also no significant difference.  Regardless, the issue is the justification of such a sentence for such a crime.

Now the Daily Oklahoman has devoted a front-page story to the case.  That story gives a deeper look at the evidence in the case, critical evidence which O’Reilly did not mention, critical evidence which the District Attorney had to face in deciding whether to take the case to jury trial or offer some plea agreement to prevent defendant Earls from going scott free.

It appears that what O’Reilly gave as “evidence” is only one version from the witnesses.
The 5-year old boy did at one point accuse David Harold Earls of touching inappropriately the 4-year old girl. Then the boy changed his story and denied his earlier statement.

The 4-year old girl did indeed accuse David Harold Earls at one time. However, the child could not testify as a witness, even by remote transmission outside the courtroom.   She came to court to testify as a witness in a pretrial hearing, and Judge Thomas Bartheld, the judge in the case, tried five times to have her sworn as a witness.  The little girl was unable to settle down enough take the oath as a witness.  She never did took it.  Does O’Reilly suggest the little girl could be a witness without taking the oath of a witness?  Would O’Reilly agree to be tried by a jury, facing life in prison, in a trial in which witnesses were not required to take an oath before testifying?  For centuries, all witnesses have been required to take the oath.  Does O’Reilly advocate elimination of this practice?   He simply does not mention this fact.

The physical evidence of abuse was reported to be“consistent with” abuse.   This evidence might be of some help, but only if some witness could link it to defendant Earls, show Earls  was responsible for it.  There were no such witnesses, so it was of no help.

The District Attorney, J.D. Miller, stated his staff knew they could not prove their case against defendant Earls.   The standard of persuasion for proof to a jury is “beyond a reasonable doubt,” and the prosecution staff recognized this case was overflowing with doubts.  So the prosecution chose to get the most they could get against Earls.

Apparently O’Reilly would have had the prosecutor present the case to the jury, obtain an inevitable verdict of “Not Guilty”, and then blame the jury or blame the prosecutor for presenting a faulty case.  Blame somebody, anybody, just get headlines.  O’Reilly does not understand or forgets that the prosecutor does not manufacture evidence.  The prosecutor can only present the case as he finds it.

O’Reilly sent his reporter, Geraldo Rivera, a law school graduate himself, with his television crew and a microphone to Judge Barteld’s chambers, most certainly for an ambush interview. When Judge Bartheld declined an interview, they claimed the judge was “hiding.”  Surprise. More sizzle, more conspiracy, no facts.

The 4-year girl’s grandmother clearly states the District Attorney and the judge in this case did the best they could with the evidence.  “We were over a barrel because of the children’s inability to testify with any consistency,” the grandmother stated.  “One minute they would be OK with testifying, and the next minute they would want to play or be crying to get out of the courtroom.”  The children’s mother said it became apparent the children were incapable of testifying.  (“INCAPABLE OF TESTIFYING!”)  Each time they were questioned about the abuse, the children had behavioral problems.  “For my children, this was the best deal, “the mother said.  O’Reilly does not even mention the approval of the one-year sentence by the  victim’s grandmother and mother, does not mention their stated understanding of why the plea agreement was offered by the District Attorney and approved by Judge Bartheld.  Why did O’Reilly omit any reference to the mother or grandmother?  Why did he omit any reference to the inability of the children to testify?

Now defendant’s daughter, Denise Earls, now 38 years old, last week claimed Earls raped her when she was a child.  Does this that make the evidence any better in the case under discussion or does that just make Earls look more guilty?  One cannot help wondering why this woman waited for so many decades before coming forward, why she did not speak up earlier to protect other girls from defendant Earls if her claim is true.  Regardless, it’s too late for new evidence for the case under discussion.  Defendant Earls plead and was sentenced over a month ago, and there is no legal provision for the District Attorney to undo that deal now.  New allegations of past wrongdoing by this defendant do not change the fact that there were no witnesses available at the time Earls’ case was called for jury trial.   And the addition of such circumstantial evidence, if ruled admissible, would not have proved Earls committed this crime in this case.

The 4-year old child and her mother have now moved away, trying to get on with their lives.  One other victim in this case was the truth. The deliberate twisting of the evidence by Bill O’Reilly was unfortunate, obviously given to add sensation at the expense of truth.  I, for one, used to enjoy O’Reilly’s take.  Anytime I watch him from now on, however, I will wonder whether he is fairly and truthfully presenting the facts.


Winning the War on Drugs by Quitting

June 22, 2009

The United States has been waging a “war on drugs” for some time.  We even had a cabinet-level “Drug Czar”, who reported directly to the President of the United States.  Reminiscent of the Viet-Nam war, the more we had to win, the less we seemed to win.

The “Drug Czar” has disappeared.  Much of the Republic of Mexico is consumed by open gun fights, kidnaping  and blatant police corruption.   Now the American border states, especially in Arizona, have experienced a spike in kidnaping. All this from the drug trade.

What drives the drug trade?  American consumers, of course.  It’s the American drug user who pays for much of the drugs world-wide, from Afghanistan to Thailand to Columbia, but especially in North and South America.  No matter what our law enforcement seems to do, that demand continues to drive the growing supply.

From time to time, people voice the idea that it’s time to declare victory in the “War on Drugs” and go home – just like in Viet-Nam.  Their point is, there is no “winning” this war, so we should admit the undeniable facts and get on with our lives.

The Law Enforcement Against Prohibition (“LEAP”) is the latest group to call out for this solution.  LEAP claims to have 13,000 members according to Jack Cole, executive director of the national association.  He served in law enforcement as an undercover narcotics officer for 14 years in New Jersey. The group claims 102 members in Oklahoma, including 11 members who have law enforcement experience.  They just put up a billboard on the Broadway Extension in north Oklahoma City that reads, “Drug Abuse is Bad.  The Drug War is Worse.”

LEAP makes the argument so often made comparing the “War on Drugs” with prohibition of alcohol in the 1930’s.  Prohibition spawned the rise of gangsters as the alcohol-seeking public paid for illegal alcohol.  Similarly, LEAP argues that all the crime associated with drugs, most notably all the violence, comes from the illegal character of drugs.  If the drugs were legalized, the market would evaporate overnight, the profit would disappear, and there would be no need for any violence.  Moreover, by legalizing drugs, the use of drugs and drug users could be better regulated and monitored that it can now, when everything is simply illegal.  The idea is that the government could control the quantity, quality, production, price and distribution of all drugs.

The argument is a good one, but the American public is just too afraid to accept drugs, too afraid to accede to addiction-causing drugs, notwithstanding the acceptance of addiction-causing alcohol.  It just seems too big a “leap.”

No surprise that law enforcement types decry LEAP and its arguments. Mark Woodward, spokesman for the Oklahoma Bureau of Narcotics and Dangerous Drugs said legalizing and regulating drugs would cause more problems than it would solve.  “It’s frightening and reckless that a group of law enforcement officers would endorse something like that….Look at what happened when we legalized alcohol and prescription drugs.   Now they’re the two most abused substances globally,” Woodward said.

President Obama has called for $14.1 billion to support the “War on Drugs” for the year 2009, according to the Office of National Drug Control Policy.  There is no let-up in sight.  The war goes on, just like Viet-Nam.  We could never win, but we just could not make ourselves face the fact that we were not winning and – apparently – never could win.


Investment in Drug/Alcohol Treatment

June 8, 2009

The National Center on Addiction and Substance Abuse has just released its three-year study.  For every $100 the state of Oklahoma spent on substance abuse over the last 3 years, $2.30 went toward prevention and treatment.  The state can save millions if it spends more on treatment and prevention, Joseph Califano said.

Califano is founder of the non-profit foundation, which is sited at Columbia University, New York. After serving in various government positions in the Department of Defense and practicing as a partner in the well-known law firm of Williams, Connolly & Califano, he served as United States Secretary of Health, Education, and Welfare from 1977 to 1979.  From that position he was fired by President Jimmy Carter, reportedly for his aggressive anti-smoking campaign.

“In terms of public spending, it is an upside-down cake,” Califano said.  “It is an inexcusable waste of money when we could avoid all the human wreckage, and all the public spending that’s imposed on taxpayers if we could just move to prevent this disease, to treat this disease.”

The report ranks Oklahoma twenty-second among the fifty states in percentage of substance abuse spending for prevention and treatment.  “The middle of the pack isn’t good enough…I would like to see us leading the nation,” said Terri White, state secretary of health and mental health and substance abuse services commissioner for the state.  “This report is a national study confirming what we know in Oklahoma, which is when you invest in the prevention of addiction and the treatment of addiction, the overall costs to the state go down even above what you spend.”

Oklahoma’s drug court costs about $5,000 per offender, whereas incarceration costs from $10,000 to $19,000 per offender per year.

Suggestions are that funding more treatment programs could come from a sales tax on alcohol of one or two cents or from the $95,000,000 Oklahoma Tobacco Settlement Endowment Trust.

The report is based on data from 2005.  New Hampshire spent $0.22 per $100, while Connecticut spent $10.39.  Oklahoma’s $2.38 per $100 is about the national average.  The report states that most of the spending by local, state and federal government is for health care from untreated addiction, which causes or contributes to more than seventy other diseases.  In 2005, Oklahoma spent $24,600,000 on substance abuse, while the federal government spent $238,200,000,000.

The Oklahoma Department of Mental Health and Substance Abuse estimates that 5% of the population over the age of 18 needs treatment for alcohol addiction (140,000 people); that 1% the population needs treatment for other types of drug addictions (21,000 people); that 6% of the adolescent population needs treatment for alcohol and drug addiction (about 20,000 young adults); about 7 ½ people need alcohol treatment for each person who needs drug treatment in Oklahoma.