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.”

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Cheating Prosecutors May Face Rare Penalties As Conviction is Reversed and Justice Department to be Investigated

April 27, 2009

It is not unheard of for the prosecution to cheat, hide evidence, manufacture evidence and generally manipulate the justice system to achieve injustice.  But in the case of former United States Senator Ted Stevens Republican-Alaska, not only was the ill-gotten criminal conviction dismissed but the Judge has vowed to investigate the Justice Department.  This is rare on both counts, especially for a Judge to pursue sanctions beyond the routine tongue-lashing.

“In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” United States District Judge Emmet Sullivan said, as he spoke for 14 minutes with thinly-veiled anger.  The trial of the former Alaska Senator was held in the District of Columbia, where Judge Sullivan sits.   Judge Sullivan appointed a special prosecutor to investigate the Justice Department lawyers who prosecuted Senator Stevens.  They repeatedly withheld evidence from Senator Stevens’ lawyers during the trial.  The trial resulted in Stevens’ conviction last October for lying on federal disclosure forms about gifts and home renovations he received from wealthy friends.  The rules of federal procedure provide for the appointment of a special prosecutor for contempt investigations, but is rarely done.

Judge Sullivan, appointed Henry F. Scheulke III of Washington, D.C., to investigate contempt and obstruction by the Justice Department lawyers.  Mr. Scheulke is a former prosecutor and experienced defense attorney who oversaw a Senate Ethics Committee investigation and influence-peddling allegations in 1989 against former New York Senator Alfonse D’ Amato.  Scheulke will investigate six career lawyers with the Justice Department, including the William Welch, chief, and Brenda Morris, deputy chief of the Public Integrity Section, an elite unit that deals with official corruption.  The other lawyers to be investigated for possible criminal charges are Joseph W. Bottini, James A. Goeke, Nicholas A. Marsh and Edward P. Sullivan (no relation to Judge Sullivan or to Brendan Sullivan, attorney for Senator Stevens).

The judge said the matter was too serious to be left to an internal investigation by the Justice Department, which had dragged its feet, he said, before looking into the misconduct.  He criticized Attorney General Michael Mukasey for not responding to complaints.  The said reaction of the Justice Department was “shocking but not surprising.”  Of course, this is the usual result of charges of misconduct by the prosecution: File 13.  Nothing ever happens, the prosecutors know nothing ever happens, so what disincentive is there not to do again.  It is similar to police who manipulate evidence: they only rarely suffer any penalties for their constant corruption of the justice system.

But Judge Sullivan did not let die the wrongdoing of these prosecutors.  He called on Attorney General Eric Holder, who dismissed Senator Stevens’ conviction on April 1st in recognition of his department’s ill deeds, to retrain all prosecutors in the Justice Department.

Some observers have remarked that, notwithstanding the wrongdoing of the Justice lawyers, there was a healthy amount of evidence incriminating Senator Stevens.  These observers suggest he has not been convicted, but he really doesn’t look innocent of wrongdoing.  Senator Stevens was defeated in his Senate reelection campaign days after the guilty jury verdict in this trial.

Regardless of the guilt or innocence of this Senator or a thousand other accused citizens, if the United States Justice Department, and its elite Public Integrity Section no less, cannot carry out its work in an ethical manner, our system of justice is corrupt.

During the five-week trial, the prosecution lawyers were repeatedly forced to admit they had not turned over materials to the defense.  Judge Sullivan even said then,“How does anyone have any confidence that the Public Integrity Section has any integrity?”  But the judge overruled defense objections, as always happens, and allowed the prosecution’s tainted case to go the jury.  Not surprisingly, the jury found the Senator guilty.  However, the surprise came when Judge Sullivan then threw out the jury verdict.  The still-further surprise came when the Judge gave notice that the wrong-doing prosecutors would not just go home to cheat again in their next trial.  This time they might have to pay some penalty for wrongdoing—for a change and for the better.  It’s about time.


“Drug Arrests” and Your Fictional Constitutional Rights

April 20, 2009

Police search vehicles every day on trumped up excuses and cover their tracks later.  Who cares?  Certainly not the citizens of the United States.  The protections citizens believe they have from the Fourth Amendment concerning unreasonable search and seizure simply do not exist in reality, on the street where the uniformed police always push the envelope in the name of “fighting crime.”

A pastor in Arizona was beaten by Border Patrol agents when they insisted on searching his car at a Border Patrol checkpoint.  The pastor thought he had rights protected by the Constitution.  The Border Patrol knew otherwise because they were more powerful and they could later justify pretty much anything they did because, no matter what they do, they are “fighting crime.”

Steven Anderson, pastor of Faithful Word Baptist Church in Tempe, Arizona, was stopped by Border Patrol checkpoint 87.5 miles from the Mexican border.  He was well within the United States.  When stopped, he refused to allow a search of his rented vehicle.  He had no drugs and no other occupants in his car.  That did not stop the Border Patrol, who used a drug sniffing dog, which, the Border Patrol claims, made a “hit” on Anderson’s car, thus giving them “probable cause” to search his car for drugs. When Anderson refused to allow a search, the police broke both front  windows, immediately began using a Taser gun on him and continued to so, bashed his head into the broken glass on the car window, dragged him out and shoved him on the ground and stood on his head, regardless that he never physically resisted at all,  As blood streamed over his face, they handcuffed his hands behind his back, put him in their trailer, and the officers came in to laugh at him.  Eventually the police drove him to be given eleven stitches but took as long as possible, with stops to exchange casual chat with some fellow officers along the way, before allowing Anderson to use the rest room.  This is standard procedure, in case you don’t know.  Police officers think it’s funny to degrade arrested suspects by making them wet their pants.

Anderson says the drug dog did not bark or give any other indication, but the Border Patrol insists the dog “alerted” to drugs in the vehicle.  Of course, no drugs were found in the vehicle, and we have only the Border Patrol’s word that the dog ever made any indication.  Some have claimed in the past that police goad  drug dogs to make a sign when the police want them to.  Then, the police can just point to the dog as though the dog is some sort of scientific instrument with objective reliability as the predicate for their actions.  But in many cases, as in this case, no one can say the dog ever made any indication at all.

After arresting him, the police told the bloodied Anderson this would never have happened if he had just answered their questions when they stopped him.  Anderson called them on their story switch and said “I thought you said you searched my car because the drug dog hit on it.”

The United States Supreme Court ruled in 2000, in Indianapolis vs. Edmond that police cannot set up roadblocks with drug dogs to randomly search vehicles for drugs.   However, an earlier exception had been made for the Border Patrol.  The Court in 1976 decided United States vs. Martinez-Fuerte, there is an exception to this rule which allows Border Patrol the unique power to establish checkpoints for seeking illegal immigrants, allowing a secondary purpose of finding drugs.  Therefore, while ordinary police cannot set up a checkpoint with a drug-detecting dog within the Fourth Amendment, the Border Patrol is allowed to do so, and the Border Patrol is not required to have “probable cause” before using their drug-detecting dog on a vehicle.  Moreover, the Border Patrol is allowed to establish checkpoints up to 100 miles inside the United States.

There is another exception allowed for checkpoints that applies to ordinary police.  That is the checkpoints set up to find drunk drivers, which was allowed by Michigan Department of State Police v. Sitz, decided by the U.S. Supreme Court in 1990.

Anderson was pulled from his car by officers of the Arizona Department of Public Safety, tasered and bloodied by the glass the police broke.  He was then jailed overnight.  Certainly he is startled that the rights he thought he had, the rights talked about on television and in classrooms are trumped by the reality of armed uniformed police who are on a mission to stamp out crime, and who are given more and more leeway by the courts.

Who cares?  No one, apparently.  The United States Supreme Court has continued over the years to chisel away at the rights of citizens so as to make things easier for police to act with impunity.  The Supreme Court has even mused about eliminating the exclusionary rule, the “Fruit of the Poisonous Tree” doctrine, which requires suppression of evidence illegally obtained by the police.  You can imagine how illegal activity by police will flourish if that action is taken. The Congress has never given any indication it believes its citizens are at risk from police increasing intrusion.  It, like the press and most Americans, believes that American citizens are at risk from “crime,” not from the crime chasers.

Only the Bill of Rights limits the use of government power.  Police naturally push the boundaries of the permitted use of government power- always.  They think they are doing their jobs by impinging on the right of citizens whenever a criminal case might be made.  Once in a while police officers are caught red-handed lying, trumping up evidence or the like, just to make a case against a suspect the police “believes” really has it coming.  This corruption in the system is inherent where the word of police is taken and rarely can be challenged factually.  The more slack leash the United States Supreme Court gives them, the police will be able to make a few more criminal cases stick, of course, but the more diminished will be the rights of the American citizen.  The Bill of Rights becomes just a wall ornament.


DUI or Drunk Driving Charges, Can You Afford the Cost?

March 25, 2009

Recently noted in news accounts are the costs of a charge of Driving Under the Influence of Alcohol or Drugs.  Minimum court costs are $715.50 in Oklahoma County.  A “typical attorney’s fee” for misdemeanor for a guilty plea is $3,000 to $5,000.  That is for a first-time offender.  Other fees included a drug/alcohol assessment mandated by state law, the costs of driving school and/or substance abuse treatment and/or counseling, all as monitored by probation services, usually by the District Attorney of the county in which the prosecution takes place.

Lurking behind all the court and attorney costs are the effects on vehicle insurance.  These increases are hard to quantify, they vary so much.  These costs can skyrocket, according to John Wiscaver, governmental affairs director for State Farm Insurance in Oklahoma.  He says many insurance companies decline to renew the policy of a driver convicted of Driving Under the Influence.

Then there’s the revocation/suspension of the driver’s license.  In Oklahoma, a conviction for Driving or Being in Actual Physical Control of a Motor Vehicle While Under the Influence of Alcohol results automatically in revocation of the driver’s license, although a modified license can sometimes be obtained.  A modified license enables the driver to drive so long as the vehicle is equipped with a Safety Interlock or similar device. This requires the operator to give (breath) a non-alcohol sample to the machine before the vehicle will start and then at random times while the journey is underway.  These typically costs about $150 for installation and then $75.00 per month, usually for six months.  These have gotten more sophisticated now, so that the machine  even takes a photo of the person giving the non-alcohol breath sample to insure it is the licensee.   Obviously, this latter measure was taken from experience to bring the cat-and-mouse game up to give advantage to the machine manufacturer.

Except for the court costs, all costs mentioned above can increase dramatically when the criminal charge includes  allegations of injury to property, leaving the scene of an accident or injury or death of a person.

The costs described are not my numbers. They came from an article in the local newspaper. However, while my flat fee for some circumstances involving a first time DUI offense might be less than the $3,000.00 minimum quoted, it would not be as low as just a few hundred dollars (as some people expect). Moreover, while it’s always possible to find a lawyer to handle a case for a lower fee, that may actually end up costing you more in terms of the outcome.

In fact, there are many pitfalls in choosing an attorney just based on price alone, such as getting a lawyer who is a high volume attorney that won’t spend much time on your case, or hiring a lawyer without much experience practicing as a criminal defense lawyer. These are dangerous scenarios for you if your case and future are important to you and your family. That’s why I recommend anyone facing a DUI charge to get my “Protect Your Freedom Kit” by requesting it at my website at http://www.oklahomacriminallawoffice.com/freedomkit.php


Criminal Defendants’ Rights to Speedy Trial

March 17, 2009

Locked up for 10 years, just waiting for her trial, she finally faced the jury, and the jury acquitted her.  But how could someone be kept that long without a trial in America?

Kathleen Hilton was charged in Lawrence Superior Court, Massachusetts, of setting a fire that killed five people.  She was diagnosed with mental retardation and was initially found incompetent to stand trial.  After some weeks of being observed at Taunton State Hospital, however, psychiatrists opined that she understood the charges against her and was able to assist her attorney in her defense.

The fire took place in 1999 in Lynn, Massachusetts.  Three children died and a fireman was injured in the fire.  Prosecutors argued that Ms. Hilton set the fire to kill her son’s former girlfriend because the woman would not let her son see his two children.  Her grandchildren lived there, and they survived.  However, other residents, Heriberto Feliciano, his wife, Sonia Hernandez, their two daughters, Sonia and Maria, and a niece, Glorimar Santiago were killed.

The case was delayed from trial by legal battles and rulings back and forth between he Superior Court and the Supreme Judicial Court.  The legal battles concerned the admissibility made by Ms. Hilton when she was arrested three days after the fire.  Allegedly she told police that she had struck a match and dropped it on the wooden porch, which she said she had soaked with flammable scented oil.  Police claimed she told them she watched the house erupt in flames and then walked home.

There was another statement at issue.  Following her arraignment, Ms. Hilton allegedly told a court officer escorting her to a holding cell, “I hope he forgives me.”  When asked what she was talking about, she allegedly said, “I hope my son forgives me.  I could have killed my grandchildren.”

Hilton’s court-appointed lawyer, Michael Natola, argued her statements were made in an attempt to protect her son, Charles Loayza, who was in a custody battle with his girlfriend, Krystina Sutherland, and had himself threatened to burn down her house.  Natola urged that Hilton made up her story because she believed her son, a prime suspect of setting the fire, would go to prison.   Her son had an alibi, however, and the police did not remain a suspect.

The right to a speedy trial is protected by the federal and state constitutions.

The United States Constitution provides in the VI Amendment:

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.

Had Ms. Hilton’s lawyer demanded a speedy trial, she likely would have received an earlier trial.  However, it appears her own lawyer was wrangling with the courts for some rulings that her lawyer thought were important enough to wait for the trial.  Facing six counts of life sentence, the stakes were great.  So long as a person or her lawyer is part of the process causing the delay from trial, a person cannot blame the system.

Indeed, The Lawrence Superior Court Rules provided that murder cases take no more than a year from arraignment to trial.  That is speedy, considering all the evidence that must be assembled and disputed by the prosecution and defense and ruled upon by the court before beginning the trial before the jury.  The Constitution of the Commonwealth of Massachusetts, which predated that of the United States about nine years, does not specifically provide for “speedy trial”, but it has a rigorous provision for the Writ of Habeas Corpus, and historically this has been an effective  safeguard against prisoners languishing in jail.

Oklahoma’s Constitution provides:

Article 2 – Bill of Rights     § 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 …”

In order to protect a defendant’s right to a speedy trial, it’s important he or she has an experienced and competent criminal defense lawyer so that issues can be dealt with effectively, and timely. There are a number of things to consider when choosing a criminal defense attorney, which is why I recommend anyone charged with a crime visit my website at http://www.oklahomacriminallawoffice.com to learn what to look for when making this critical decision.


Big Brother is collecting your DNA in the name of fighting Crime

February 19, 2009

The state of Washington is considering a bill that will require the collection of DNA samples from every person arrested of a felony or gross misdemeanor, before a conviction for anything, that is. The state of Washington joins more than twelve other states who have similar laws, while Indiana, Vermont and Texas are now considering such provisions. New York City’s mayor, Michael Bloomberg, has made the same proposal for that city. In Texas, under a new proposal, which faces an uncertain future in the current budget-cutting climate, DNA would be taken from everyone who is arrested on suspicion of committing Class B misdemeanors up to the most serious felonies.

Currently in the state of Washington, DNA samples can be taken from anyone convicted of a felony and from those arrested for particularly violent crimes such as aggravated rape, aggravated kidnapping and murder. This is typical of most states, like Maryland.

Washington’s law provides that police would have to obtain a search warrant before forcing the arrested person to give a DNA sample via mouth swab, or the police could obtain a sample of they could obtain a person’s “voluntary permission” to do so. The law provides that the DNA information would be destroyed if the arrested person were found not guilty or not charged.

Where would the DNA information be sent before the state authorities destroyed it? Perhaps the FBI records? Of course, no one expects the federal authorities ever to disgorge any information, they have acquired. They never do.

The executive director of the Washington Association of Sheriff’s and Police Chiefs, Don Pierce, says the DNA information is “good technology. It solves crimes. We take fingerprints at the time of arrest, which in many ways is more intrusive.” This may not be so, since DNA evidence is more easily tampered with, however, in that it may be more easily placed at a crime scene. Regardless, there is no doubt the more information about it citizens which the government possesses, the better it can fight crime. If the government could just put video cameras into every single household in the U.S.A., it could put a huge dent in crime. There would be no privacy whatsoever, but the police would be so happy to finally get their chance to really fight crime.

Jack King, staff attorney for the National Association of Criminal Defense Lawyers in Washington, D.C., said his organization has been fighting similar DNA-collection proposals since 2004. King said he believes that seizing biological evidence before conviction violates constitutional protections against unreasonable search and seizure. Shankar Narayan, legislative director of the ACLU of Washington, said the proposal pending in Washington “takes the presumption of innocence and turns it on its head.”

A Chicago study found that requiring DNA upon arrest could have prevented dozens of murders and rapes. In one case, a man who was arrested for felony theft went on to commit a murder and left DNA evidence at the scene six months later. If his DNA had been taken at the time of his theft arrest, Chris Asplen, a DNA consultant from Pennsylvania , said the man would have been caught after the first murder. Instead, he went on to kill 10 women.

So the perpetual ying and yang tension of crime fighting efficiency versus the privacy of the individual continues. Do Americans want their governments to have a storehouse of personal information on every citizen? Great Britain has this. Wouldn’t a national identity card make the job of the police easier? Wouldn’t implants in every citizen make monitoring of citizens easier for the police, like in the science fiction movies, like in 1984 dictatorships?

Law abiding citizens have nothing to fear, we are often told. The police are only going after the bad guys. This is comforting to those who have complete faith in police discretion and fidelity, to those who have not witnessed the short cuts taken, mistakes made, mistakes covered up, rules bent, oaths violated, and lies told by police for various reasons and with various intentions, including “getting the bad guys,” but including many more personal and self-promoting motivations as well.

Great Britain already has the world’s largest DNA database. Anyone arrested in England and Wales is compelled to submit to a DNA swab and the record is kept whether he is convicted or not. In Scotland this rule is restricted to violent and sex offenders, and then for only three years unless an extension is applied for. According the Daily Mail, Home Office Minister Tony McNulty is right to be cautious before treating the entire population as suspects. He and Home Secretary Jacqui Smith should take the same view of equally worrying plans for ID cards, and for intrusive surveillance on travelers to Europe. As the Daily Mail pointed out, “We are not all guilty, and we will lose much more than we gain if we submit ourselves to Big Brother.”

In these days of abuse of power, individuals who are charged with a crime or held as a suspect need to seek expert criminal legal advice. That’s why I urge anyone in that situation to visit my site at http://www.oklahomacriminallawoffice.com to learn how to choose the right lawyer to protect their rights.