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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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.


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.


“Safe” Taser Guns Cause Deaths in Arrests

February 26, 2009

The use of Taser guns is increasing. Police departments continue to buy more and more of them. Just in the month of December, 2008, police departments in Maryland, Florida, New York, Michigan and Pennsylvania purchased new electric stun guns. Meanwhile, the police in Durham, N.C., plan to double their existing inventory of Tasers from 110 to 235, and a police chief in the Atlanta metro area hopes to add 1,000 more stun guns.

The Taser stun gun is the most common brand of CED, conductive energy device, which fires 50,000 volts of electricity through its target [person] from as far away as 35 feet. This causes uncontrollable muscle contraction and temporary immobilization.

Tasers are considered safe by the police, a safe alternative to guns or other types of force such as nightsticks, perhaps safer for the police than their having to use of physical force to enforce restraint in various situations including arrests of criminal suspects. “Tasers generate a lot of volts but not a lot of amps,” Deputy Sheriff Dan Deering, a Taser trainer for the Jackson County (Michigan) Sheriff’s Office, said. “It’s not the volts that kill you. It’s the amps.”

Others say the stun gun is dangerous. The City of San Jose, California, paid $70,000 to the widow and child of Edwin Rodriguez after police in 2005 fired Rodriguez with a Taser. Family members had driven Rodriguez to the hospital when he suffered an attack of his chronic schizophrenia. However, when he resisted the treatment at the hospital, police pinned him to the ground and stunned with a Taser, allegedly four times. He died in less than an hour, the fifth person to die in San Jose from being shocked since San Jose Police were issued Tasers in 2004.

Amnesty International reports that 334 people have died in the United States between 2001 and August, 2008, after being stunned by Tasers, including 55 people in California and 52 in Florida.

Police like to point out that the mere display of a Taser often accomplishes compliance. Likely this is true. But critics believe the very confidence police have in Tasers may cause the police to underestimate their potentially lethal power. According the Associated Press, the Taser Company claims their stun guns cannot kill. The Amnesty International report concedes that most of the 334 deaths were attributed to other medical factors such as drug intoxication, but the report included coroners’ conclusions that Taser shocks did in fact cause or contribute to at least 50 of the deaths.

Researchers commissioned by the Canadian Broadcasting Corporation also concluded that over time, Tasers can begin to malfunction and fire with up to 50 percent more power than their manufactured limits. The study found even stun guns firing at expected electrical levels carry some risk of inducing cardiac arrest.


Injustice for sale — Judges jail children for money

February 24, 2009

Two judges pled guilty in Pennsylvania last week to putting children in jail for money. The Judges accepted more than $2.6 million from a private youth detention center in Pennsylvania in return for giving hundreds of youths and teenagers to unnecessarily long sentences.

Mark Ciavarella and Michael Conahan, Judges of the Court of Common Pleas in Luzerne County, Pennsylvania, pled guilty in federal court in Scranton, Pennsylvania, pursuant to plea bargains with the United States Attorney’s office. They admitted that they had accepted payoffs from PA Childcare and Western PA Childcare between 2003 and 2006. They are each facing up to seven years in prison.

The scam worked like this: The judges sent juveniles to the detention center so the company running the facility received money from the county government to pay costs of the incarceration. Thus, as more children were sentenced to the detention center, PA Childcare and Western PA Childcare received more money from the government.

The judges sentenced the children to more severe sentences that required incarceration in order to generate more money. Teenagers who were sentenced by Judge Ciavarella in juvenile court were sentenced to detention centers for minor offenses that ordinarily would have been classified as misdemeanors, according to the Juvenile Law Center, a Philadelphia nonprofit group. One seventeen-year-old boy was sentenced to three month’s detention for being in the company of another minor who was caught shoplifting. Others were given similar sentences for simple assault in which the charges stemmed form a scuffle in the school yard, and these would ordinarily merit only a warning.

Although the juveniles were guaranteed the right to a lawyer in court, many of them appeared before Ciavarella without an attorney because the probation service personnel told them that their charges were so minor that they didn’t need an attorney.

The chief counsel of the Juvenile Law Center, Marsha Levick, estimated that of approximately 5,000 juveniles who appeared before Judge Ciavarella from 2003 and 2006, between 1,000 and 2,000 received excessively harsh detention sentences. She said the center intends to sue the judges, PA Childcare and Western PA Childcare to obtain money damages for their juveniles victims.

Prosecutors were quoted as saying “That judges would allow their greed to trump the rights of defendants is just obscene.” That is always so, but it is especially so here where the defendants were so young and vulnerable. This is an extremely vicious crime because it strikes at the integrity of the system, but it appears even more vicious when considering how young lives may have been damaged so severely, taken from school and parents, put into a detention center where there are likely young predators waiting for someone to prey on.

The judges tried to hide their ill-gotten income from this scheme by creating false records and rouging payments through intermediaries. “Your statement that I have disgraced my judgship is true,” Ciavarella wrote in a letter to the court. “My actions have destroyed everything I worked to accomplish and I have only myself to blame.” Conahan had no comment to make.

Ciavarella and Conahan were removed by the Pennsylvania Supreme Court as judges when the charges were filed in federal court, and the Supreme Court appointed a judge to review all the cases involved.

Again, we have an instance where innocent people are falsely persecuted. It certainly indicates the need for a defense lawyer who can be the legal advocate in protecting the rights of the accused, even for something that seems minor, at first blush. It’s very possible that many of these children sentenced did not have an attorney because it seemed their situation was such a minor offense but that just made it easier for the judges to get away with this injustice.

Consequently, it’s always advisable to seek advice from a competent criminal attorney, when you or your child is charged with any kind of criminal, even petty, act. Get educated on how to choose the best lawyer and discover how to avoid common mistakes by going to my website at http://www.oklahomacriminallawoffice.com


Oklahoma Court of Criminal Appeals Judge De-frocked, What Goes Around Comes Around

February 20, 2009

When a jury trial results in a conviction, or for any reason one of the parties in a criminal case wants to seek reversal of the trial judge’s decision on a matter, the issue must be taken to and decided by the Oklahoma Court of Criminal Appeals. That is the highest court, the court of last resort, for criminal matters in Oklahoma. Oklahoma is one of only two states in which appellate criminal matters are decided by court dedicated to criminal matters. Texas is the other state. In all other states, all issues of last resort are heard by the same court as the court that decides civil matters, usually called the state supreme court.

The five members of the Oklahoma Court of Criminal Appeals are appointed by the governor. Every four years of their term, their names appear on the retention ballot for decision by the voters. The voters of Oklahoma have never failed to retain a judge on the retention ballot.

For all these reasons, Judge Steve Lile had a job that was secure. He was one of the five judges who sat on the Court of Criminal Appeals. He could rule against every defense lawyer who brought a legal issue to the Court of Criminal Appeals for his decision. He could overrule every motion any lawyer urged on his defendant client’s behalf. He could rubber stamp practically every conviction brought to his court for review, and find no legal merit in any reason to overturn a conviction. And he did.

But then it was his turn.

Steve Lile traveled to attend project conferences, meetings of the Regimented Inmate Discipline (RID) Program offered by the Department of Corrections. He routinely applied for mileage reimbursement for that travel and was paid. But there were no meetings on those dates. Lile was filing false claims to the state so he could visit his illegitimate son, Loran Michael Wilson, in prison. Lile made almost weekly trips between June and October, 2004.

Lile had gotten caught intervening on behalf of his then-loverr, Dawn Lukasik, to get out of drug charges in Lawton. The Lawton District Attorney there dismissed the drug charges for the flimsiest of reasons, obviously as a favor to Lile, and from that incident, the travel claims came to light. Dawn Lukasik is the mother of Loran Michael Wilson, and Lile is his father, Lile later said. Lile had not known Wilson was his son until recently.

When Lile’s behavior came to light a few years ago, Lile resigned rather than fight the efforts of the Attorney General to remove him. Since then, Lile has been a private lawyer, a lawyer representing people accused of crimes, the kind of lawyer for whom Lile had such contempt for so many years.

Now the matter of Lile’s license to practice law has been heard by the Oklahoma Supreme Court. It was an ethical violation for Lile to file those false travel claims, even if he has paid back $1523.64 for false travel claims and paid back $1560.40 for false claims Lukasik made for her personal use under the pretense of using the purchases to remodel Lile’s state judge’s office.

Lile told the Supreme Court that he was regretful and remorseful for his misconduct. He was just not thinking straight, he said. Giving the limpest of possible excuses, Lile urged the Supreme Court to forgive his misconduct, that his conduct merited only a private reprimand.

The Supreme Court found no merit in Lile’s excuses, denials, and minimizations. Lile had sought and accepted an office of the highest responsibility from the sovereign state of Oklahoma. He had taken an oath to follow the law. He should have known better. He betrayed all of these. He does not deserve to practice law in Oklahoma. So decided the Supreme Court.

The Supreme Court listened to and considered all of Steve Lile’s arguments. The Court ruled against him, but he received full consideration of his position by the Court. That is all defense lawyers wanted when they appeared before Lile when he was sitting on the bench.