Alternative School Struggling

May 7, 2010

Prisons are full of people who had trouble in school.  Many spent time at an alternative school.  The idea, as criminal defense lawyers know as much as anyone, is that those who attend the alternative school stay out of prison.
Emerson Alternative School is one such school.  Part of the Oklahoma City School District, offers day care for the girls’ babies and serves young men who are at risk.  Built in 1894, the school will be one of the District’s last schools renovated in the MAPS for kids program

The school suffers from a number of problems.  Conditions are cramped and seriously need renovation. The walls are so thin between math and language arts classes that one sitting in one class can hear both lectures.  Two portable buildings at Emerson were damaged in the Murrah Building bombing 15 years ago.  They have leaking ceilings and no temperature control.
When voters approved the MAPS for Kids bond issue assessing a ½ cent tax, $1.8 million was scheduled for renovations to Emerson Alternative School.  On further consideration, officials decided Emerson needed more.  Now, $3.5 million worth of improvements are projected for the school, including a new building addition of 17,500 square feet.

Soon the School Board will vote on whether to increase the budget by transferring money from unallocated MAPS for Kids funds assigned to “alternative schools” to Emerson School.  Construction of the improvements to Emerson are scheduled to begin in the spring of 2011.
About 7,600 babies were born to teen mothers in Oklahoma in 2007, the sixth birth rate in the nation. There are scores of teen mothers in Oklahoma public schools, and 115 of them attend Emerson. If a teen mother has support at home from a family member who can baby sit or the teen mother can afford day care, she can continue her education attending the regular schools.  But for those who do not have such advantages, the teen mother must attend a school like Emerson or just drop out of school.   Emerson offers mothers support that includes day care on-site and social workers.

Emerson also provides a second chance to male and female students who have been kicked out of other schools or are academically far behind.  The two distinct missions are co-located at Emerson but operated independently from each other.

Emerson is located in Midtown, now enjoying a revival. Emerson has partnered with St. Anthony’s Hospital, which itself has invested $200 million in Midtown redevelopment since 2003.  The hospital hopes to reinstitute the health clinic at Emerson, which lost funding in 2009.


Oklahoma Forensic Anthropologist Analyzes Criminal Evidence in Famous Cases

August 6, 2009

Not often do criminal defense lawyers face expert witnesses in the field of forensic anthropology.  This is a field requiring years of tedious work on just one subject, and there are few people who qualify in the field as experts.  Clyde Snow is one of them, and he lives in the Oklahoma City area.

Snow, whom some call the “father of forensic anthropology,” has confirmed skeletal remains of such well-known figures as Tutankhamun, the king from the Middle Kingdom of Egypt, the victims of the Oklahoma City bombing, Dr. Joseph Mengele of Nazi war-crime infamy, and those of President John F. Kennedy.

Snow served as a consultant on the remains found under the house of John Wayne Gacy, who murdered 33 boys and young men from 1972 to 1979 in suburban Chicago.  He found that all but one of these victims had been suffocated, some with plastic bags over their heads and others with ligature strangulation.

Snow even investigated Kurdish deaths in Iraq and testified in Saddam Hussein’s trial.  In 1991, after the first Gulf War, Snow went to Kurdistan, sponsored by Middle East Watch to document some of the gas attacks Hussein ordered in 1988 and 1989.  With a team of Argentine, Guatemalan and Chilean forensic anthropologists he had trained over the years.  They exhumed some mass graves and examined and documented the skeletons.  They took samples from bomb craters in a village that had undergone a chemical attack on which several people were killed and many injured.

The investigators sent the samples to Porton Down in England for analysis.  They found there were traces of serum gas.  This was important to prove that a complex chemical like serum had persisted long enough to be traced, but no one suspected at that time that this evidence would ever be used in any court proceedings.

Nearly 15 years later Saddam Hussein was brought to trial in Iraq.  Snow was called as a witness for the prosecution and asked to present this evidence. And, unlike any other trial Snow had testified in, the accused himself was allowed to cross-examine Snow.  Saddam immediately challenged Snow.  He said Iraq was full of mass graves and asked how Snow knew that ones I had described were not those of Sumerians from thousands of years ago.

Snow had a powerful answer.  He pointed out that the Sumerians had a rich civilization but not likely so advanced that its people wore digital wristwatches such as those found on the Kurdish skeletons.  Furthermore, it was unlikely that the wristwatches of Sumerians, if that is what they were, would all have stopped on August 28, 1988.  Of course, Saddam Hussein went on meaninglessly after that, and the judge had to have him sit down.

During training of his forensic team some of students he was training in Argentina would break down with emotion at a mass grave or morgue.  Snow had to give them some tough love at that point, insisting they cry at home to allow them to go on with their work, to perform professionally regardless of the obvious human tragedies they were witnessing.  But they can have some fun, as well, like when they searched for bodies of Butch Cassidy and the Sundance Kid.

In the Bolivian village of San Vicente, they found a graveyard where the two were supposed to be buried.  They exhumed two skeletons and took one of them back to the United States.  There they extracted DNA, which excluded either Butch or Sundance on genetic evidence.  It turns out the skeleton was that of a German named Zimmerman, an engineer in a mining company in Bolivia. He had died about the same time by accidental gunshot.

At the age of 81, Snow continues.  Most recently he has been testifying in a trial regarding the alleged extrajudicial executions in 1998 of hostages-takers in the siege in the Japanese Embassy in Lima, Peru. Snow is a true professional, contributing much to the criminal justice system over the years,  and we Oklahomans are proud to claim him as one of our own.


Oklahoma State Agency Lacks Sex Offender Treatment Funds

July 30, 2009

Sex offenders are supposed to receive treatment while behind bars so they won’t offend again when they are released from prison.  Now it comes to light that Department of Corrections has space for only 55 offenders, while there are more than 3,000 sex offenders in Department of Corrections custody.

Inmates who are closest to completing their prison sentence are given priority when there are openings because research shows such programs are more effective just before release.  But the resources such as bed space and program manpower limit the size of the sex offender treatment program, and the capacity is not likely to expand, Jerry Massie, Department of Corrections spokesman said.

One criminal defense lawyer in Oklahoma County intends to ask a judge to release his client early from prison so the client can continue at his own expense sex offender treatment which is not available in prison.

Private treatment is available from a few sources, such as Richard Kishur, an expert who created the Department of Corrections sex offender treatment program.  This criminal defense attorney is not the only one who has argued that getting treatment to change future behavior is the main thing society should seek.  Otherwise, a punishing society can insist on putting people into  prison, only to let them out eventually, unchanged.  So if the prison system cannot provide that change, the offender should be kept out of prison to pursue private treatment, outside prison.

Randy Loop, chairman of the Oklahoma Coalition for Sex Offender Management, said community-based treatment is a cheaper alternative than prison.  Loop said recidivism rates are low for sex offenders, which makes them good candidates for treatment in lieu of incarceration.  Loop said studies show 13 to 15 percent of sex offenders are re-arrested.

Prosecutors, of course, prefer that sex offenders go to prison, and if treatment is received in prison, fine.  No surprise there is an emphasis on punishment from them.  Unfortunately, the tax payers are not willing to come up more and more tax money needed for more and more prisons.  The Department of Corrections does not have any sex offender programs out in the community, outside incarceration.  Such a program might possibly be a less expensive approach that could address the need which Department of Corrections is not now addressing.

The Department of Corrections program, for those lucky enough to get in, lasts up to 16 months, depending on the risk of the offender.  It takes a minimum of one year to complete.  There are 200 people on the waiting list for the program which has 55 slots.  The program is designed to help offenders understand the effect that sexual deviancy has on victims and society.  Offenders learn and discuss intervention strategies.  Psychological and psychosexual testing is used to plan treatment.  Polygraph examinations help determine each offender’s progress through the program.


Oklahoma Defendants Denied Video Evidence

July 26, 2009

The recent controversy from Oklahoma Highway Patrol Trooper Daniel Martin stopping and scuffling with Creek Nation paramedic/ambulance attendant Maurice White brought new focus on the video cameras placed in the Highway Patrol cruisers.

The Department of Public Safety, the parent of the Highway Patrol, spent $1.4 million just in the past year installing the vehicles with these state-of-the-art digital video cameras. Upon completion of the latest order of cameras, there will be 368 of the WatchGuard DV-1 cameras.  Each vehicle’s video system costs about $4,500.00, manufactured by WatchGuard Video LLC of Plano, Texas.

About the expense of the cameras, Lieutenant Colonel John Harris, deputy chief and  director of the patrols’s transportation division said, “It’s an expensive piece of equipment, but you get what you pay for.  It’s a good product for law enforcement.”  Well, what about the tax payers who purchased the equipment?  Don’t they get to see the contents of the video recordings pursuant to Open Records requests?  Too bad.   You don’t get the benefit of the cameras.  You, Mr. and Mrs. Taxpayer, Mr. and Mrs. Voting Citizen, are not important enough. You only get to pay for them.

Some other expenses by the Highway Patrol are $3,621,340 for gasoline since last July and $671,477 for vehicle maintenance since last July.  The Highway Patrol has 350 troopers on patrol for 96,000 miles of road patrolled ever year in Oklahoma.

The new cameras are set to begin recording automatically an time a trooper turns on his front and rear emergency lights. Footage is captured from pursuits, traffic stops and other emergency situations.  Troopers can also manually turn on the cameras in other situations where only the emergency lights are used, such as helping motorists or acting for traffic control. As a criminal defense lawyer, the traffic stops are the situations I am most interested in.

Responsibility for safekeeping of the DVD-recorded video evidence falls to a supervisor. Each of the 13 field traffic troops in the state has a supervisor.  Other supervisors review the recordings from time to time for performance evaluations of the troopers.  These are reviewed especially when a complaint is made.  The proof can be in the recording.

The patrol began using the in-car videos a decade ago.  Some of the troopers were hesitant about using them at first.  “It didn’t take very long for these troopers to figure out that 99.1 per cent of the time, they realize that those vindicate them,” Lt. Col. West said.  In such cases, the Highway Patrol readily discloses the content of the video. They like what’s on the recording, so they show everybody.

But what about the other 0.9 percent of the time?  That is what the public, including criminal defense lawyers, want to know.  What about when the results show a misdeed by a trooper?  Why is the Highway Patrol covering up malfeasance?  “I can assure you it’s not about secrecy,” Lt. Col West claimed.  Certainly not.  Of course not.  How could anyone suspect such a thing?  It’s only about secrecy when it accrues to the benefit of wrong-doing troopers.  When it’s to the benefit of the Highway Patrol, no secrecy is needed.  You can see where the public ranks in the importance ladder of state government.

The Oklahoma Open Records Act exempts public access to the contents of these recordings.  The legislature enacted this change in the law in 2005 at the request of the Highway Patrol.  Of course, the Highway Patrol did release, voluntarily, the footage from Trooper Martin’s scuffle with the Creek Nation ambulance paramedic. There was just too much pressure in that case, and, from that incident, the press learned they are not allowed to get the video footage from Open Records requests.  The only other time the Highway Patrol has voluntarily released video footage was the 2003 killing of Trooper Nikky Green in Cotton County.  The Patrol released the footage to help the Patrol catch the shooter in that case.

Texas, Missouri, and Arkansas make their state police video camera recordings available through those states’ open records, unlike Oklahoma’s denial of such access.  Arkansas releases their videos to the public after a case reaches the initial court stages.  The Texas Department of Public Safety releases videos taken by a trooper dashboard camera after an investigation has been completed.  In Missouri, the video recording is released after the case has been completed at the trial level.   Kansas is like Oklahoma: secret.  Their legislature, like Oklahoma’s, has decreed that their citizens cannot be trusted with such things.


Police get special rights in potential Oklahoma City Criminal Charges

July 17, 2009

When someone is shot, the police naturally investigate right away.  And they will talk immediately to whomever they believe fired the shots.  That is unless the shooter is a police officer. They are protected by a 48-hour halo in which they cannot be interviewed about the shooting.

How many citizens accused of shooting would like this automatic protection? How about the pharmacist who is now charged with shooting the unarmed teenager who lay on the ground after a robbery-gone-bad?  Doesn’t someone in his position believe he is entitled to the same police officers are given?  In the pharmacist’s case, the video tape of the incident is more important than his statements, but his statements will still be used against him.

How many criminal defense lawyers wish their clients had been or would be given this kid-glove treatment?

“If it’s good for the goose, it should be good for the gander, “ Randall Coyne said.  He is a criminal and constitutional law professor at the University of Oklahoma.  “Why should the police officers, who are trained, be given more rights than citizens?”

One justification for the police policy is that the waiting period gives officers more time to sort through the emotional trauma of using force.  “It gives them time to settle down, get their thoughts together and give a complete statement,” one of their attorneys said.

Of course.  But wouldn’t that apply to any person who had been involved in a shooting?  Wouldn’t it be emotional for anyone?  Shouldn’t every citizen be given that benefit?

Oklahoma City’s well-respected Chief of Police, Bill Citty, tried to put the policy in context by explaining that all other witnesses are usually interviewed by homicide detectives before talking to the suspect.  If a 48-hour halo is not needed for suspects, it’s not needed for police officers.  If any who is suspected of shooting another person is presumed to be guilty, then police should be given the same presumption.  Don’t the police trust their own investigators to be fair?

The Oklahoma City Police Department points to other departments that employ the same 48-hour halo policy: El Paso, Texas, Fairfax, Virginia, and Columbus, Ohio.   But others do not: Tulsa, Denver, Colorado, Cincinnati, Ohio, Austin, Texas, Kansas City, Missouri.

The Oklahoma City Police Department, as all police departments, investigates any shooting with an officer involved.  Only one shooting since the late 1980’s resulted in disciplinary action on the officer, and the review board that so found later reversed itself.

The Oklahoma State Bureau of Investigation does not follow this 48-hour halo for its agents or for any other police involved in shootings.  The O.S.B.I. has not had an agent involved in a shooting in anyone’s memory, but their agents assist local law enforcement agencies with police shooting incidents, and they attempt to interview the police officers immediately.


A New Standard for Death Penalty?

July 12, 2009

Lawyers for a convicted killer in New York are asking the New York Court of Appeals for a new standard to sustain the death sentence for their client.  Lawyers for Angel Mateo are seeking an interpretation of the New York constitution to require proof of a defendant’s guilt “beyond all doubt” to justify an execution.  They urge that a special rule for death penalty cases is required, a standard higher than the centuries-old one of “beyond a reasonable doubt.”

Mateo confessed in 1996 to killing four people in Rochester.  The Court of Appeals is New York’s highest court.  Observers do not believe the court will adopt the new standard, but the fact that the suggestion has reached this high in the judicial system is a new development.

There is a growing public concern about the possibility that innocent people might be put death.  In state after state, death row inmates have been proven scientifically innocent of the death for which a jury convicted them.  Never until DNA evidence could such a certainty of innocence be obtained.  Now people have doubts about the system that allowed this for so many years, a system that was supposed to prevent this.

Increasing the level of certainty required for conviction is one of a handful of proposals to modify capital punishment that have gained attention around the country in the last few years.  James Liebman, a Columbia Law School professor, has written widely on the death penalty.  He said the proposal to increase the standard of proof in death penalty cases has been endorsed by some influential criminal law experts since the 1960’s.  He favors the idea, which he says “is a very logical outgrowth of the view that we can have a death penalty and make it reliable.”

Frank Keating is a former governor of Oklahoma, and former senior Justice Department in the Reagan administration.  When he was governor, he sought in 2001 to change the death penalty law in Oklahoma to require proof “to a moral certainty.”   “I think if you’re going to take somebody else’s life, you need to be convinced to a moral certainty, ” he said.

The idea of increasing the level of certainty required for conviction is one of several proposals to modify capital punishment in the last few years.  Some of the proponents are death penalty supporters who say the only way to bolster public support for execution is to ensure that only those who clearly deserve the ultimate punishment are put to death.

Prosecutors oppose this “beyond all doubt” proposal because they believe it would block all death penalty cases. They believe it is not possible to eliminate all doubt.  Michael Arcuri, district attorney in Utica, New York, and president of the New York State District Attorneys Association, said, “If that standard is adopted, we will not have the death penalty in New York.”

A New Jersey Supreme Court Justice, James H. Coleman, Jr., dissented in a death penalty decision in 2002.  He wrote that there is a special need of reliability in capital cases.  He said the same standard “used to determine whether an individual should be found guilty of possession of a marijuana cigarette should not be used in determining whether an accused can be executed.”

Another law professor, Robert Blecker, favors the death penalty. A professor at New York University, he suggests that the finding of guilt continue under the traditional standard of persuasion of “beyond a reasonable doubt.”  He says a higher standard would make convictions impossible.   However, he suggests then using the higher burden in the second stage of the bifurcated proceeding, the penalty phase of the trial.  He says when jurors determine whether to sentence someone to death, they should be required to meet a higher standard.  He said that standard should be proof to a moral certainty that a defendant should die.

The justifications for the death penalty, of course, have taken a hit since the implementation of sentences for “Life without the Possibility of Parole.” If such a sentence means exactly that, and it always has in Oklahoma, then doesn’t the state get its due from such a sentence?  No criminal defense lawyer expects a defendant sentenced thus ever to get out.  Nevertheless, death penalty proponents point to societal revenge, satisfaction and other philosophical achievements that they believe only the death penalty can satisfy.  Maybe so.  But it really is not much of a deterrent.  Ask anyone who is facing a death penalty charge or was convicted.  All of them, they never expect to get caught.  So how could the penalty possibly affect them?


Criminal Defendants Wrongly Convicted by False Evidence—– More wrongdoings by Joyce Gilchrist

July 4, 2009

The ghost of Joyce Gilchrist remains with us.  Gilchrist is the forensic chemist who worked for the Oklahoma City Police Department who fudged, concocted, created and lied about evidence in order to help the prosecution wrongly convict several defendants.  One of her better known victims was Jeffrey Todd Pierce.  Gilchrist lied about microscopic evidence to get him convicted, and only after he had served 15 years in prison did Gilchrist’s wrongdoing come to light.  Gilchrist was fired, Pierce was released and received $4 million in damages from the City of Oklahoma City.

As the questions rose over the years about Gilchrist and her work, people continue to wonder:  Why did then-District Attorney Bob Macy continue to use Gilchrist as a witness to convict people, even after her fabrication of evidence and unsupported testimony had been called into question?  Why did Oklahoma County judges continue to allow Gilchrist to testify, even after Gilchrist’s employer, the City of Oklahoma City, was trying to fire her?

Of course Gilchrist has always denied all wrongdoing and claimed the City of Oklahoma City was racially prejudiced against her when the City fired her.  That accusation went nowhere in court.  Gilchrist has never admitted doing anything wrong despite a tsunami of evidence against her.

The latest case of Gilchrist’s malfeasance is the case of David Johns Bryson.  After serving 17 years in prison, Bryson has been released.  Gilchrist’s evidence against Bryson was reviewed by another expert, Brian Wraxall, chief forensic serologist at the Serological Research Institute in California.  Last November, he looked over Gilchrist’s lab notes from the Bryson trial and found serious flaws.  Gilchrist had received some of her training at the institute, and Gilchrist was as student of Wraxall.

Bryson was charged with rape.  Key evidence used to convict him were hair, blood and semen samples.  There was also other evidence linking Bryson to the crime, including eyewitness testimony and injuries to the attacker’s penis.   Gilchrist testified the hair, blood and semen were “consistent” with Bryson.  Better DNA techniques later developed showed the samples were not a match to Bryson, but other scientists concluded, based on a review of Gilchrist’s work done at the time, that Gilchrist should have excluded Bryson even before the 1983 trial if Gilchrist done her science correctly, regardless of DNA testing.

“Ms. Gilchrist failed to run a substrate or background control from the robe as she was taught in my laboratory, “Wraxall reported.

Gilchrist’s hair analysis was already discredited.  In 2001, the FBI conducted reviews of Gilchrist’s work and concluded the hair evidence did not match Bryson.  When asked about this finding, Gilchrist, in a deposition, said, “That happens all the time.  Hair examination is very subjective and experts may or may not agree on the conclusions that are reached.  So if someone else agrees or disagrees with my findings, I don’t put much weight in that, “she testified.  Do you think Gilchrist admitted at Bryson’s jury trial that hair testified was a “subjective” finding about which experts disagree all time?  More likely Gilchrist gave the jury the impression her findings carried the force of objective science, inexorable conclusions, undeniable fact.   But that was her testimony to get convictions.   Her later deposition was to save her own hide.

Whether Gilchrist was even qualified to conduct such tests was an issue in the lawsuit filed by Bryson.  Gilchrist’s college transcripts show she had some trouble performing academically in some of her courses.  She was placed on academic probation plural times and academic suspension.  She was questioned at her deposition about her sometimes sub-par performance at the FBI Academy as well.  For instance, she misidentified some hair samples on tests.  But she graduated from the Academy and from college.

Gilchrist at one point stated she regretted not expounding on her answers more in trials.  She did not specifically state she regretted putting so many innocent people in prison with her false testimony.

And, despite the criticism that was becoming more public, then-District Attorney Bob Macy backed her fully and continued to use as his expert witness.  She got convictions, so why quit?  Even after the Oklahoma City Police Department tried to can her, Mr. Macy wrote on her behalf and wanted to continue to use to get more convictions.  When he was asked about the falsification or tampering with evidence, he expressed indignation that anyone would question “law enforcement” or its motives.  In other words, just take our word for it and don’t ask any questions, exactly what the public did for too long.

It took the heroic act of U.S. District Judge Ralph Thompson to bring Gilchrist down.  Only someone so respected as Judge Thompson, when he ruled so unequivocally and extensively about her mistakes, could call attention to her wrongdoing and stop her.  No state judges had the courage or the understanding to do it;  they simply rubber-stamped the prosecution to assist in sending one after another innocent man to prison.


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.”


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.


Criminal Legal Cases and Other Categories as Reported by Judicial business of the United States for 2008

April 9, 2009

The Statistics Division, Office of Judges Programs, Administrative Office of the U.S. Courts has published its annual report.  The report is 431 pages and covers all U.S. Courts of Appeals, U.S. District Courts, and U.S. Bankruptcy Courts.

Filings of cases in the U.S. Courts of Appeals, were up 4.6 %, in the U.S. District Courts up 3.8 % for civil cases and 3.6% for criminal cases, and in the U.S. Bankruptcy Courts up 30.2% from the year 2007.  Terminated cases in the three categories were similar to the increases in filings, except that they were 12.8 %.in Bankruptcy courts.

The case load for U.S. Courts of Appeals remained approximately at its same level since 2004.  Cases handled per panel were 1,068, almost the same as in 2007, and very close to the same level as in the years back to 2004.  Courts of Appeals have about 53,071 cases pending, about the same numbers as past years, and this despite terminating 59,096 cases in 2008, a fairly average number.

These appeals came from the District Courts in criminal cases (13,667 cases, up 3.8 %) and civil (31,454, up 3.8 %, which includes prisoner petitions of 16,853, up 8.9%), Bankruptcy Courts (773, down 8.5%), and Administrative Agencies (11,583 cases, up 11.6 %)

The U.S. District Courts carried 394 cases per judgeship (cases per authorized judge), a 3.7% increase over 2007.  The District Courts handled 267,257 cases, which included 54,786 prisoner petitions and 68,171 personal injury cases. The District Courts terminated 234,571 for the year 2008 (a decrease of 2.1%) and left pending 298,129 cases (a 12.3 % increase over 2007).

These cases in District Court are further broken down into those with the United States as plaintiff (9,649 cases, a 0.9% over 2007), those with the United States as defendant (34,515 cases, down 3.9% from 2007), those with a federal question (134,582, down 3.5%), and diversity of citizenship (88,457, up 21.8 %).

Cases with the United States as plaintiff include immigration cases, and that category increased in 2008 by 27. % to 21,313 cases with the a 26% increase in the number of immigrant defendants to 22,658.  The charge of improper reentry counted for 73 percent of all immigration cases and 69% of all immigrant defendants.  Seventy-two percent of all immigration cases were filed in the five southwestern border federal court districts: the District of Arizona, Southern District of California, District of New Mexico, Southern District of Texas and Western District of Texas.

Overall, therefore, it is evident that while significant increases of litigation for bankruptcies and immigration occurred in 2008, other areas such as criminal cases had only a slight increase. Consequently, the constant indications in the news media that we’re experiencing a skyrocketing increase in criminal cases is not founded in fact.