Wednesday, August 31, 2005

Unimaginable Devastation Wrought by Katrina

Please do all you can to help the victims of Hurricane Katrina. Posted by Picasa

Tuesday, August 30, 2005

Kentucky Governor Voids Prosecution

Update: The editorials in Kentucky are in, and they don't look good for the governor.

Update: Governer Fletcher did indeed invoke the 5th at the grand jury today. is keeping tabs on the story.
Original post:

The governor of Kentucky has decided that he is sick and tired of the state attorney general's investigation into crimes allegedly committed by his political appointees. So, he granted pardons to every single one of the people already indicted, as well as anyone who may be indicted in the future for crimes already committed. He has also said that he will refuse to testify when he is called before the grand jury investigating the alleged improprieties. Now, of course, these are all things that he has the right to do. As any other defendant, he has the right to take the 5th amendment--although if he has the power to pardon himself, one could argue that he doesn't face any real jeopardy. And as the governor, he has the right to grant executive clemency (although, again, I'm not thoroughly familiar with Kentucky's clemency procedures). But, as a political move, how can the electorate of Kentucky stand for this? How can this be viewed as anything other than the governor declaring that he and his cronies are above the law? The law that was allegedly violated was one that apparently forbids hiring decisions in state agencies from being made for political reasons. If the politician in charge can just pardon anyone charged with violating this law, what good is the law? I don't know if there are provisions for impeachment or recall in Kentucky, but if this doesn't qualify as something for which the governor should be removed, I'm not sure what would. Unless Kentucky has decided they prefer having a King to a governor.

New Laws Start on Thursday

Grits for Breakfast highlights some of the new laws he likes--and that Governor GoodHair didn't veto--that go into effect on September 1. I agree with him that probably the best outcome of this legislative session was all the proposed penalty enhancements that have sailed through in previous sessions, but got shot down this year.

Houston DA Doesn't Think Change in Law Changes Anything

You might not be surprised to learn that Texans like guns. That doesn't mean we don't have some pretty strict gun laws here in Texas, though. The most commonly used is the "unlawfully carrying a weapon" statute which makes it a Class A misdemeanor, punishable by up to a year in jail, to carry a handgun on or about your person. There are a few defenses to this statute, however. These include the obvious--licensed to carry concealed weapon, engaged in lawful hunting, peace officer, etc. There is also a defense for a person who is "traveling." The problem is that traveling has never been defined by the legislature. This meant that the courts have come up with a sort of mish-mash of definitions for "traveling." So, this year, the legislature decided to create a presumption that a person is traveling if a few things apply--they are in a car, they aren't engaged in crime, they aren't a gang member, etc. The legislators intended the change to prevent needless arrests and charges against individuals who were traveling. But Harris County DA Chuck Rosenthal and Rob Keppel, the head of the state's DA association, don't think the change in law changes anything. Rosenthal is telling law enforcement officers in his county not to change thier arrest policies for UCW cases one iota. According to Rosenthal, the new law still doesn't define traveling, and it is always up to a jury to decide. Now, on one hand, I have to say that Rosenthal is right when he says the law still doesn't define "traveling." Rather, it creates a presumption. On the other hand, it does seem as though he is clearly circumventing the intent of the legislation. And, of course, on the other hand (I know there isn't really a third hand!), the legislature has screwed up by not just providing a definition of traveling and creating the presumption. I don't know why I'm surprised by any of these things.

Death Penalty for an Illegal Abortion?

This is a story about what can happen when the legislature changes different areas of the law which happen to reference one another without thinking about how mixing the two might result in extereme consequences. In 2003, the Texas Legislature changed the definition of "individual" in the penal code to include "an unborn child at every stage of gestation from fertilization until birth." Life begins at conception in Texas. That means that anyone who causes injury or death to an embryo or fetus can be prosecuted the same as if that "child" were any other individual--assault, murder, etc. Trying to keep things constitutional, the legislature made some exceptions in the penal code. The first one stated that an expectant mother could not be prosecuted under the homicide statute for conduct that resulted in the death of her unborn child. The second exception stated that a physician who was performing a "lawful medical procedure" where the death of the unborn child was the intended result could not be prosecuted. But here is where things start to get hinky. "Lawful medical procedure" is not defined in the penal code. It is defined in the health code. This year, the legislature took up abortion issues. They weren't happy with how their parental notification law was working, so they changed it to a parental consent law. How did they change it? Well, they amended the health code to make it an unlawful medical procedure to perform an abortion on a minor without parental consent. What none of them realized, apparently, is that by doing so, they also altered the application of the homicide statute as it applies to abortion. A doctor who performs an abortion on a minor without parental consent is not merely subject to administrative penalties or revocation of his medical license. He can now be charged with murder. And since murder of an individual under age 6 is a capital offense in Texas, the doctor could be charged with capital murder where the only lawful punishments are death and life without parole. A sharp district attorney caught this "unintended consequence" and brought it up at a recent meeting of state prosecutors. Legislators are responding that this was absolutely an unintended consequence and something they never thought about. The governor's representative says they aren't going to talk about hypotheticals and conspiracies. But, this isn't a conspiracy. By the letter of the law, no matter what individual legislators say they intended, a doctor who performs an abortion on a 16-year-old girl without parental consent is subject to the death penalty or life without parole. That is quite a serious "unintended consequence," if you ask me.

Monday, August 29, 2005

Eight Years Without a Trial

A man in Louisiana recently had his murder charges dismissed because he has been sitting in jail for eight years, waiting for a trial. I don't even know what to say about a situation like that. It is simply inexcusable for someone to sit in pre-trial incarceration for eight years without going to trial. It is hard to know from the article where the blame should lie--defense attorney, prosecutor, judge. Probably a little of all three. But, ultimately, it is the judge's responsibility to see that a jailed defendant goes to trial. Around here, you have a lot to answer for if you have someone who has been in jail for a year and has not gone to trial yet.

It is no suprise to anyone that the criminal justice system runs a lot differently if you are poor than if you are rich, or even middle class. Almost all of my clients are in jail, meaning that they are too poor to post a bond before trial. Many of these people have bonds set between $1500 and $5000. That means that they sit in jail on just probable cause because neither they nor their famlies can scrounge together between $150 and $750 to post a bond. For some of these people, pre-trial incarceration can last months or even more than a year. Just imagine what type of consequences being in jail for that length of time can have. It often means lost jobs, lost housing, and sometimes children put in state custody. It also means that these people have a much greater incentive to accept a plea bargain for probation than those who are on bond. If even an innocent person is faced with the choice between sitting in jail for months--losing his job, losing his apartment, and losing his kids--while they wait for a trial (with no guarantee of winning, of course), and the option of pleading guilty, being placed on probation, and immediately being released, which option do you think they are going to choose?

Like so many other problems facing the poor in the criminal justice system, I'm not sure what the solution to the problem is. I do think more people who can't afford bond, but who can prove that they have an established residence and employment, should be able to be released through a pre-trial release program. But beyond that, I'm not sure what can be done. It just seems to be one of the unfortunate realities of the system.

Friday, August 26, 2005

FBI Crime Lab Bolsters Innocence Claim of Man Serving Life Sentence

You may remember the case of Bruce Lisker, who I posted about in May. Lisker was convicted of bludgeoning his mother to death. A re-examination of the case by The Los Angeles Times has led many to believe that Lisker is innocent. One of the main pieces of physical evidence against Lisker at his trial was a bloody shoeprint which jurors were told was consistent with Lisker's shoes. When a LAPD crime scene analyst compared the two, however, she concluded that they did not match. She also concluded that a mark found on the victim's head was a shoeprint similar in size and description to the bloody shoeprint. Now, the FBI has weighed in with their forensic analysis of the shoeprints, and they agree with the LAPD analysis. Neither the bloody shoeprint on the floor nor the shoeprint on the victim's head are a match to Lisker's shoes. Bruce Lisker, meanwhile, remains in prison. "An innocent man is not in prison," LAPD Deputy Chief Gary Brennan continues to insist. I'm so happy that he can feel so confident about that. Here is the problem. The legal issue should not even be whether Lisker is innocent. The fact is that the jury was given scientific evidence that supported Lisker's guilt, and it has now been confirmed by the FBI and the LAPD itself that the evidence was false--that the scientific evidence actually supports Lisker's innocence. A conviction based on false evidence should not stand unless there was other overwhelming evidence of guilt. And in this case, there was not.

One More Victim of the Drug War

A man has been sentenced in federal court to more than 8 years in prison for possessing less than two ounces of marijuana with intent to distribute. How was he going to distribute it? Well, it turns out he was planning on giving it to his friend who has been suffering from multiple sclerosis. Eight years in prison for trying to get a couple joints to your friend with MS. How do the people who do this sleep at night? Seriously, how do they?

Thursday, August 25, 2005

Sometimes, It Snows in Texas . . . in August

It doesn't happen very often, but it happened today. A person accused of murder was found not guilty by a Harris County jury today. Congratulations to her defense attorney for pulling off this most rare feat. For those of you not as familiar with Texas justice, Harris County is home to Houston, and the county responsible for putting more people on death row than any other county in Texas. In fact, I believe it has put more people on death row than any state except Texas (obviously), California, and Florida.

From what I have read about the case, it sounds like prosecutors felt the need to charge her because of her actions afterward in initially letting her son take the blame for the shooting. But, by the son's own testimony in court, the woman had just been severely beaten by the "victim," had retreated to get a gun, and the "victim" kept advancing on her anyway. Unless the state was disputing those facts, and it doesn't seem from the press coverage that they were, then they never should have even prosecuted this case. It seems like their main argument to the jury was that she should have called the police instead of shooting him. That's ridiculous. The police could not possibly have gotten there in time to prevent him from further assaulting or killing her or her son. If he had been an intruder instead of her boyfriend, they never would have prosecuted her.

Barry Scheck on "Streamlining"

Barry Scheck's testimony before Congress on their frightening proposed legislation, The Streamlined Procedures Act of 2005, is chilling.

One Time is Too Many

I was recently appointed a new jail client. When I looked up his prior record on the computer, I noticed that he had previously been found incompetent and sent to the Terrell State Mental Hospital. As I spoke with him later, we discussed his mental illness--he has been schizophrenic for many years--and how he was feeling. He mentioned having gone to Terrell more than once, so I asked him how many times he had been to Terrell. "Too many," he said. No doubt.

Wednesday, August 24, 2005

Brock Peters, Rest in Peace

Brock Peters passed away yesterday. Peters played Tom Robinson, the wrongfully accused man defended by Atticus Finch (Gregory Peck, who is also pictured) in To Kill a Mockingbird, one of my all-time favorite films. Posted by Picasa

When I Was Hungry, You Fed Me . . .

The mayor of Dallas is upset that its recent panhandling ordinance has failed to reduce panhandling. So, after consulting with police, she has come up with a new, brilliant solution to the problem--ticket the people who give them a buck! That's right. She figures that while the homeless people aren't really deterred by a city ordinance that slaps them with a fine they can't pay, and puts them up at the city jail for a night or two, the people who give money to panhandlers are much more likely to be deterred by a big, fat fine. While the mayor thinks this would be effective, she is a little worried that citizens might not think it's a good idea. She also would need the city council to back it, which seems unlikely. But, stranger things have happened. So, the next time any of you Dallas residents are thinking about dropping a dollar in the guy on the corner's hat, think again! You don't want to be a criminal do you?

Tuesday, August 23, 2005

More Texas Criminal Justice Blogging

Say hello to Texas Criminal Justice, a new blog from Scott Belshaw, a criminal justice investigator and consultant in Houston. Welcome, Scott!

Compassionate Policing

When a police officer commits a crime, the police are very concerned about the individual's medical and mental state, and much less interested in filing felony charges. I have no doubt whatsoever that if this incident involved anyone other than a police officer, this person would be under arrest, and shackled in her bed in the ICU with a 24-hour guard. She would be charged with felony evading arrest. There would be no waiting until they determined the subject's medical or mental condition. There would be no quote from a Sergeant like this: "If there was some medical condition that caused this, we can't file charges." Because god knows the police never file charges against someone whose actions were caused by a medical condition.

Monday, August 22, 2005

Race and the Jury

The Dallas Morning News is rolling out a special multi-series piece on jury selection in Dallas County criminal cases, and how it is impacted by race. I've only had the chance to read a couple of the articles so far, but it is all very interesting. If I have time today, I'll be posting more thoughts on the series.

Saturday, August 20, 2005

The Lone Dissenter in Protecting the Great Writ

There is some seriously scary legislation restricting state court defendants' rights to use the writ of habeas corpus in federal court to challenge their convictions. The typically Machiavellian-titled "Streamlined Procedures Act of 2005" would eliminate virtually all federal court jurisdiction to review state convictions even for innocence and egregious constitutional errors. I think I have been sort of ignoring it, hoping that it was just a sick joke. But, it keeps on inching forward in the U.S. Congress. This monstrous piece of legislation must be stopped. You can read more about its draconian provisions here. I bring this issue up now because the Conference of Chief Justices has apparently unanimously passed a resolution urging the Congress to slow things down before moving forward on the proposed legislation. Oh, I'm sorry. Did I say unanimously? I meant that they were unanimous except for the justice from Texas. We sure do love to stand out here. Of course, the Chief Justice of Texas doesn't even review criminal cases (we have a Court of Criminal Appeals that acts as the court of last resort in criminal cases), so his vote shouldn't even count. Apparently, the reason he gave for his "no" vote on the resolution was that he hadn't had enough time to study the legislation. Shouldn't he then abstain, instead of voting "no?" Why is it any more responsible to vote "no" on something you know nothing about and have no responsibility for than to vote "yes?"

Friday, August 19, 2005

Indictment? What Indictment?

A colleague has a child sexual abuse case set for trial. The indictment alleges one act. The probable cause affidavit attached to the indictment alleges one act. The prosecutor has given notice of extraneous offenses involving the same child which it may seek to introduce evidence of at trial. Then, it gets tricky. Apparently, there may be a question as to whether the particular incident for which the defendant was indicted actually occurred in the county. In answer to this, the prosecutor informed the defense attorney that if that is a problem, he can just elect to prove one of the extraneous offenses which did occur in the county to the jury, and that will suffice. Can this possibly be true? I have heard of cases where the grand jury is presented with evidence that a child was repeatedly molested over a course of months or years, and the grand jury indicts the person on one count. At trial, the defense can force the state to elect which particular incident they are seeking a conviction on, so the jury is required to unanimously agree that one particular incident occurred. That would seem to cure the problem of double jeopardy and jury unanimity. But what about your right to be tried on an indictment returned by the grand jury? In Texas, this is an absolute right. You cannot be charged with a felony by information or complaint unless you waive your right to a grand jury indictment. But, if the state can indict you for one incident, and prove a completely different incident, how does your right to indictment have any meaning whatsoever? Why not just indict someone for "a felony," and then give notice later as to what the offense is, and have a jury trial for that?

Thursday, August 18, 2005

Harris County Overcrowding

Grits for Breakfast is on a short break, but has collected some great recent posts about the overcrowding issue and messy bail situation in Harris County recently. They are an excellent read about some nuts and bolts issues in the criminal justice system that have profound consequences on the real people who find themselves locked up pre-trial.

Wednesday, August 17, 2005

Still Looks Like Murder To Me

I've asked this before, and I am asking it again--with even more force after reading the latest news. Why isn't this murder?

Reading Your Own Transcripts

Skelly links to this nightmare story about a defendant who had his conviction reversed because the judge beat up on his lawyer repeatedly. Apparently, the judge was annoyed with the defense attorney's habit of saying, "Okay" after a witness answered his question. At least 20% of the attorneys in this courthouse do the exact same thing. It is a horrible habit that all of us who have been afflicted with try to erase, but it's not easy. And I don't imagine it is any easier when the judge is threatening to fine you $100 for each time you say it for the rest of the trial. Personally, I am often mortified when I read a transcript of one of my hearings or cases. "Do I really talk like that in trial?," I ask my colleagues. Lots of "okays," and stopping questions in the middle, backing up, and starting new questions. I wonder if trial attorneys reading their own transcripts is an experience akin to actors watching themselves on a big movie screen. Probably not. I'm just romanticizing again, I suppose.

Animal Sex a Big Draw

I've had a lot of hits recently from people searching for "animal sex." I must remember to post about topics like this more often.

Tuesday, August 16, 2005

Poll the Jury!

Thanks to this article that Alaskablawg posted about, I will always poll a jury that convicts one of my clients! That just goes to show that the one in a million shot pays off sometimes (I'm guessing about one time in a million--ha!).

As a side note, I once had the almost opposite experience where a jury went from 10-2 for acquittal to 12-0 for conviction in about an hour. That really, really sucked.

It's the Little Things

A few weeks ago, I was appointed to represent a young man charged with robbery. He had just been arrested, and, as I spoke with him, I discovered he was mentally retarded. Having been to seminars about the perils facing the mentally retarded in the criminal justice system, I decided to put my training into practice. I was very concerned that investigators would come to speak with my client, and by claiming they would help him and work things out for him, they would get him to make incriminating statements. So, I gave him my card, wrote, "I want my lawyer" on the back of it, and spent the next twenty minutes drilling him that he wasn't to say anything to anyone about his case except those words. I role-played the cop with him. I was a good cop. I was a bad cop. It took a while, but finally, I sent him off, hoping it had sunk in. Now, he has been indicted. I spoke with him in the jail and explained what happens in the process from this point. Before sending him back to his cell, I off-handedly asked him what he would say if a cop came to talk to him about his case. He thought for a second, then smiled, pretended he was holding a card in his hands, and said tentatively, "I want my lawyer." Victory! Another one of those little moments that can make your day in this business.

Friday, August 12, 2005

When the Police Want to Stop You, Anything You Do is Suspicious

Thanks to Gideon's Guardians for the tip to this excellent quote from a 7th Circuit opinion by Judge Posner. The case was a pretty, run-of-the-mill pedestrian stop case, but Posner couldn't resist addressing one aspect of the officer's testimony:

Gilding the lily, the officer testified that he was additionally suspicious because when he drove by Broomfield in his squad car before turning around and getting out and accosting him he noticed that Broomfield was "staring straight ahead." Had Broomfield instead glanced around him, the officer would doubtless have testified that Broomfield seemed nervous or, the preferred term because of its vagueness, "furtive." Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.
You gotta love Posner.

Thursday, August 11, 2005

Just in Case You're Wondering, Nancy Grace is Still Evil

Last night, Nancy was doing a story titled, "Model Murdered by Millionaire Boyfriend." During the course of her "discussion" about the case, it came out that the woman wasn't a model, but was telling her husband she was going on modeling assignments as a cover for her extramarital affair. Of course, "Woman Pretending to be a Model So She Can Have an Affair Murdered by Millionaire Boyfriend" doesn't make for a great tag line. Anyway, the suspect has apparently fled to Mexico and Nancy was railing about how it will be impossible to extradict him if he is caught in Mexico unless California takes the death penalty off the table. The defense attorney on the panel had the nerve to mention that the case may not have any of the aggravating factors that would make it a death penalty case (you know, things like murder of a police officer, murder committed in the course of committing another felony, etc.). Nancy's response: "He beat her to death with a baseball bat! That's pretty aggravating to me!" Silly defense attorney! He forgot that one of the aggravating factors that make an offense death-eligible in California is if the offense aggravates Nancy Grace. Later in the discussion, the defense attorney said that this was a domestic homicide, and before he could finish his sentence about how more needs to be done about domestic violence, Nancy cut him off, shouting, "So, defense attorney 'John Smith' [I can't remember his actual name] is stating that if a woman is murdered by her husband or lover, that case does not deserve the death penalty." The silly defense attorney tried to respond that he does not believe any case deserves the death penalty because he is opposed to it, but that he was not saying that a domestic homicide---BAM!---Nancy cuts him off again to shout that he is now trying to change the subject to the death penalty and she won't hear it.

Question: Why do defense attorneys ever agree to go on Nancy's show? Judging by the defense attorneys she has had on recently--not your usual defense attorney talking heads--I'm guessing that it is just defense lawyers desperate for media attention. The top gun defense attorneys appear to be boycotting her.

Wednesday, August 10, 2005

I Could Not Care Less . . .

I don't know the precise reasons why, but the ridiculous "legal" stories that the media deems "newsworthy" enough to merit national media attention absolutely infuriate me. So, just to get it off my chest, I am declaring that I could NOT possibly care less about:

*Jennifer Wilbanks, the runaway bride, mowing lawns or doing anything else as part of her community service

*What Scott Peterson's life is like in prison

*Natalee Holloway, her mother, stepfather, their private investigator, that annoying Aruban newspaper editor who somehow manages to get a paper out even though he seems to be on television 24 hours a day, or any other pretty, blond, missing person

*Any criminal defendant proposing to use a ridiculous defense that no jury will ever believe

*Any plaintiff filing a clearly frivolous lawsuit that will quickly be tossed out of court by a judge (who will also probably impose sanctions) and never come close to a jury trial

*Any "celebrity" being charged with some insignificant fine-only offense like possession of a marijuana cigarette or public intoxication, or any rappers being charged with drug or gun possession

What "legal" stories could you not care less about?

Tuesday, August 09, 2005

Why Do Police Continue Bad Identification Procedures?

The cases last week of Thomas Doswell and Luis Diaz, who were both exonerated by DNA evidence, brought to light once again the problems with eyewitness identification. Approximately 75% of all the Innocence Project DNA exonerations have involved mistaken eyewitness identification. The major problem with eyewitness identification evidence is that it is far more powerful to a jury than it is reliable in reality. That makes for bad justice. Of course, you can't simply throw out eyewitness identification altogether. When it is correct, it is good, strong direct evidence. But, both the Diaz and Doswell cases illustrate that a good eyewitness can produce a bad identification when the police use bad identification procedures. And yet, years after the Justice Department recommended changes in eyewitness identification procedures, the vast majority of police departments around the country still use outmoded procedures. Why? I can't understand it. The research shows that using the new procedures drastically reduces the number of incorrect identifications while causing only a slight dimunition of correct identifications (which dimunition is partially attributable to a lessening of "good guesses" by the witness). The recommended procedure involves the following elements:

*blind administration - the officer who shows the witness the "line-up" should not know who the suspect is

*witness information - prior to viewing the line-up, the witness should be told that the perpetrator may not be in the line-up

*proper fillers - the fillers--the individuals included in the line-up other than the suspect--should be selected based on their similarity to the original description given by the witness rather than their similarity to the suspect

*sequential procedure - witnesses should be shown each subject sequentially rather than all at the same time

Extensive research has shown that using these procedures drastically reduces the incidence of incorrect identification. When these procedures are used, the eyewitness evidence becomes even more powerful in a courtroom. So, why aren't police departments across the country changing their procedures? Is it just because they're stubborn?

Two Jackson Jurors "Regret" Acquittal

So, two of the Michael Jackson jurors now say that regret voting "not guilty" and think Jackson was guilty. They gave an interview talking about how mean their fellow jurors were and how they should be ashamed of themselves for letting a pedophile go free. They both have book deals pending. I'm not really sure why anyone would actually want to buy a book penned by a Jackson juror, but whatever. I also think the most reasonable interpretation of what's going on here is that they were part of a minority at the beginning of deliberations, were convinced to go along with the majority, and have let the media coverage surrounding the trial and acquittal (which they were shielded from during the actual trial) affect their opinions of the case. There is a reason after all that you're not supposed to read or listen to news coverage of a case when you're a juror. One final thought. I've heard some commentators say that this might make the prosecution feel better about their case. Are you kidding me? There is nothing more infuriating to an attorney who has shed blood, sweat, and tears over a trial and lost anyway than to hear jurors say, after the fact, that they wished they had voted the other way. Then you should have voted the other way, you morons! These two people are telling the reporter that they were powerless to resist, and the other jurors "made" them vote not guilty. That's just ridiculous. Group dynamics be damned. When you are a juror, you take an oath to return a true verdict based on the law and the evidence. If you agree to vote one way or another based on anything other than that, you are violating your oath. To tar and feather other jurors who actually followed their oaths and did vote according to their honest beliefs is disgraceful. And you shouldn't get a book deal for that.

Monday, August 08, 2005

NACDL, Innocence, Heroes

I just returned from the NACDL Annual Meeting & Seminar in Portland, Oregon. I met a lot of wonderful attorneys, heard some great presentations, and had an all-around good time. The highlight was Barry Scheck's presentation on Friday. He had an amazing week last week--securing the release of two innocent men. And for anyone who thinks that Barry just does this for publicity or fame, well, they have never seen him get extremely choked up--even having to take a couple minutes to avoid crying--as he talked about the undying determination of his client's family to prove his innocence. Barry Scheck is definitely one of my heroes, and someone who has answered the call inherent in Martin Luther King's quotation that "injustice anywhere is a threat to justice everywhere."

Tuesday, August 02, 2005

Lessons from Another Innocent Exonerated

A lot of news outlets and blogs have reported the story yesterday and today of Thomas Doswell. Doswell was convicted of rape 19 years ago after the victim and another witness picked him out of a photo array. DNA evidence has now proved him innocent, and he has finally been released. Two things about Doswell's case struck me.

First, Doswell has been repeatedly denied parole because he refused to accept responsibility for "his crime." This is just one way in which the criminal justice system is tilted against the wrongfully accused. I don't mean that the way you probably think I mean that. I don't believe that the system is designed solely to convict. What I mean is that if you are a guilty person in the system, things tend to work out a lot better for you than if you are an innocent person with evidence that is legally sufficient to convict you. Most criminal cases resolve with a plea bargain. And a plea bargain is called a bargain for a reason. The defense gives up the right to have a trial and the possibility of an acquittal, while the state gives up the possibility of a stiffer sentence after a trial. Put another way, the defendant is willing to give up his chance at acquittal for the certainty of a sentence that is lower than he might get if he were convicted at trial; and the state is willing to give up its chance at a stiffer sentence for the certainty of a conviction which might not come at trial. But someone who is innocent is far less likely to accept a plea bargain. Many judges, in fact, will not accept a plea bargain from a defendant who will not acknowledge his guilt in open guilt. The result of all this is that innocent people are more likely to go to trial where, if convicted, they are more likely to receive stiffer sentences than were offered to them as a plea bargain. Moreover, like Mr. Doswell, innocent people who are convicted are less likely to admit guilt at parole hearings, and therefore more likely to be denied parole and forced to serve their entire sentences. This is a perverse result. Yet, I'm not sure if there is any sort of workable solution. I don't have enough time today to think about how this problem could be eliminated, or, at the least, lessened. Anyone out there have any ideas?

Second, why the heck did the prosecutors in the case oppose DNA testing in the first place? If there is biological evidence to test, and identification (as opposed to consent) was an issue at trial, what basis is there to oppose testing? How much longer did Mr. Doswell labor in jail because of the prosecution's opposition? I hate it when I read stuff like that. I honestly believe that most prosecutors out there are trying to do justice. And I just don't understand why a prosecutor wanting to do justice would oppose DNA testing in case like this.

Monday, August 01, 2005

Update: I didn't realize how many of you out there had such weak stomachs! Due to complaints about the picture, I've made it smaller. You can see it in its original size--and read a good article about the meth problem--by clicking on the link below the picture.

Meth mouth Posted by Picasa

Sham Trials

When is it time to call these military "tribunals" the sham trials that they are? How about when two top prosecutors think the "judicial system" in which they are attempting to prosecute is rigged to ensure conviction? How about when one of those prosecutors cannot bring himself to sign a brief to a court attesting to the fact that process is fair? How about when those two prosecutors quit altogether in protest? It's time.

FYI, these are the very same tribunals that Supreme Court nominee John Roberts ruled were constitutional. Of course, I doubt he had the benefit of these prosecutors statements when he made that decision.

My favorite part of the NY Times article on the subject is the response of the top military prosecutor. He says that he has great respect for both of these officer-lawyers, but that their statements about the tribunals are "monstrous lies." How on earth can you have respect for people who tell "monstrous lies?" About you?

Life After the Pen

If you're not a regular reader of Grits for Breakfast, you are really missing out. Week after week, he has very thoughtful posts on how law enforcement and the criminal justice system can make us all truly safer without sacrificing our cherished liberties. Today, he takes note of what can be done for felons once they get out of prison in order to prevent them from returning to crime.