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July 2004
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September 2004

It's Kinda Sad...

...that I've become somewhat desensitized to news that yet another wrongfully convicted person has been freed. Every time I read an article, I think, "Oh, another innocent person has been released. What's new?"

Some man rotted in prison based on unreliable evidence. Yet prosecutors continue to criticize jurors who demand scientific evidence before condemning a man to rot in prison. From CNN comes the latest story of a man, wrongly confined:

A man who spent 17 years in prison for the 1986 rape, kidnapping and robbery of a hospital worker was freed Tuesday after DNA evidence cleared him.

Clarence Harrison, 44, was sentenced to life in prison in 1987 on charges of sexually assaulting the woman as she waited for a bus.

A new DNA test of the rape kit used as evidence in the case showed Harrison did not commit the rape.

Even though juries wrongfully convict people based on non-scientific evidence, prosecutors still show disdain for hard evidence.

This story reports on the so-called CSI Effect on Arizona law enforcement. The CSI Effect is shorthand for jurors' newfound belief that in serious cases, the prosecution should present physical evidence. In a robbery case, the police should gather fingerprints. In a murder case, the police should send DNA to a laboratory for analysis. Jurors have learned about forensic evidence from a popular CBS show, CSI: Crime Scene Investigation.

Prosecutors are not pleased. Sayeth one prosecutor:

Suzanne Cohen, deputy Maricopa County attorney, says jurors "should expect law enforcement to do their job." But, she adds, "Television has put unrealistic expectations on what we can do with technology."

Prosecutors cite this example to butress their case:

Jurors in Maricopa County Superior Court in Mesa this summer acquitted a defendant in a Tempe commercial burglary case. A witness testified about spotting him and another man dragging out a stereo, and police arrested the defendant a few minutes later with burglary tools in his car.

But jurors told prosecutors after the trial that the police "didn't do enough" while investigating the case and needed to find the defendant's fingerprints inside the building.

I wonder what these "burglary tools" were. Did they include latex or leather gloves, lock picks, etc.? Or did a police officer say that items you and I would ordinarily have in our car are burgulary tools? Based on the quote, it's obvious the police did not find the stolen items in the defendant's car. Why shouldn't a jury want more than a bold assertion that a screwdriver is a "burglary tool"?

Another example:

A Tempe convenience-store clerk identified an accused armed robber who used a pellet gun in the robbery last year. A second witness saw the suspect run out the store.

Jurors could not reach a verdict, telling prosecutors after the trial that police should have tested a soda bottle the defendant left on the store counter for DNA.

Eyewitness identification is the most unreliable evidence. Mistaken ID's are the single greatest causes of wrongful convictions. Yet prosecutors are angry because a jury wants reliable evidence in addition to eyewitness IDs. I can't fault a jury for wanting reliable evidence before sending a man to prison. But I am old-fashioned.  Here's another example of "unrealistic" juries:

Phoenix police officers approached a group of people standing in an empty lot two years ago and said they saw a man drop a plastic bag containing illegal drugs. Latent fingerprints were never submitted because two officers said they saw the man ditch the drugs and prosecutors thought that was sufficient. Jurors disagreed, acquitting the defendant. They later told prosecutors they wanted the prints.

Ah, the famous dropsy testimony. Maybe the police didn't test for the defendant's prints because they wouldn't be there.

Thousands of people are wrongly in prison based on eyewitness IDs and "circumstantial evidence." Hundreds have been freed after physical evidence has proven they could not have committed the crimes.

If a prosecutors first duty is - as they so often tell juries - to do justice, then shouldn't they ensure that physical evidence, when available, is gathered and tested? What does it tell us about prosecutors when they get angry at jurors who demand that readily available physical evidence be tested?


Rape Shield, Confrontation, and Connecticut

Does it violate the Confrontation Clause to exclude evidence that the complaining witness was a prostitute when the defendant's theory of his case is that the prostitute falsely accused him of rape for not paying her full asking price? The Connecticut Supreme Court said "Yes," in State v. DeJesus. (Note: All citations below refer to the page of the .pdf file. Also, all internal quotation marks and citations have been omitted).

Tina C. was acquainted with Luis DeJesus. Ms. C. would often perform odd-jobs for him. She would come over to his house for social visits. And they had sex at least once.

One early morning Ms. C. asked DeJesus if he had any work for her. DeJesus invited Ms. C. up so that he could call some friends to solicit work for Ms. C. What happened next is in dispute.

She said: DeJesus asked me to have sex with him. I told him no and tried to leave. He grabbed my arms, pinned me to the ground, and raped me. Once he was finished, he threw $30 down at my feet, as if I were a whore. I took the money but only because I did not want to fight with DeJesus anymore.

He said: Ms. C. is a prostitute. She came over my house that morning to offer me her services for her usual rate of $50. I agreed to pay her. After we had sex, I only paid her $30. She was unhappy but left with the money.

At trial, the jury was never allowed to hear DeJesus’s side of the story. The trial court found that the rape shield law prevented the admission of any evidence concerning Ms. C’s sexual history. The defense was not allowed to confront Ms. C. about her job as a prostitute. In a 5-0 opinion, the Connecticut Supreme Court reversed.
Wrote the Court:


The primary interest secured by confrontation is the right to cross-examination . As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness’ reliability. [P]reclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. Further, the exclusion of defense evidence may deprive the defendant of his constitutional right to present a defense.
Slip opinion at 6-7 (quotations and citations omitted - here and in the citations below).

However, the Court wrote: "The defendant’s right to confront witnesses against him is not absolute, but must bow to other legitimate interests in the criminal trial process." Id. at 7. One such "legitimate interest" is to prevent complaining witnesses' in rape trials from having irrelevant aspects of their sex lives revealed in a public forum. However, the exclusion of evidence under rape shield laws is also not absolute.

Evidence of prior sexual conduct is admissible in a rape trial when "the proffered evidence so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights." Id. Here, whether Ms. C. was a prostitute was both relevant and material.

Evidence of Ms. C.’s prior prostitution is relevant because it would help the jury determine whether she had a bias or motive for falsely accusing DeJesus. For example, a jury could rationally conclude that Ms. C.’s reason for crying rape had nothing to do with his overpowering her will: Instead, she wanted to get even with him for shorting her $20. The evidence is material because, if true, it would provide DeJesus with a defense. Indeed, that Ms. C. was a prostitute would be his only defense. The Court wrote:

In the present case, as in Demers, the excluded evidence of the victim’s prior prostitution deprived the jury of the necessary contextual framework to evaluate properly the defendant’s version of events. Without such evidence, the jury was left to speculate as to why the defendant provided, and the victim accepted, the money that both agreed had been exchanged. Because the jury could have inferred, from the evidence presented,that the victim needed money from the fact that she had gone to the defendant’s residence looking for work, it reasonably could have concluded that she accepted the money when it was offered because she needed money. Had the jury been allowed to consider the excluded evidence, however, it reasonably could have concluded, contrary to this explanation for why she accepted the money, that the victim accepted the money because she had performed an act of prostitution for which she expected payment. The evidence, therefore, was relevant to establish the victim’s consent to the sexual intercourse, rather than her general unchaste character as prohibited by the rape shield statute.

Also, without evidence of the victim’s prior history of prostitution, the jury heard no evidence to explain why she would have had a reason to fabricate a sexual assault allegation against the defendant. [A]ny limitation on the impeachment of a key government witness is subject to the most rigorous appellate review. If the jury had been allowed to consider the excluded evidence, it reasonably could have found, contrary to the implication that she simply needed money, that the victim demanded a fee for her services as she had done in the past.

Id. at 9.

Moreover, the Court took umbrage at the proscutor’s misconduct. In his closing argument, the prosecutor said:
‘‘What reason is there for [the victim] to give false information about what happened that morning?’’ Id. at 10. Indeed, there was a very good reason for the complaining witness to lie. However, the prosecutor willfully kept this reason from the jury.


Guest Post - Fighting the Law

Via the Comments to this post comes the most kick-ass thing I've read in a while:

I was recently stopped in northern, Arizona for speeding. The first question officers always ask is "Do you know how fast you were going?" I always know how fast I am going and resent having to choose between potentially incriminating myself or, even worse, lying to a police officer by answering "No."This time I ignored his question and handed the officer my driver's license, insurance and registration. He asked me a second time, "How fast were you going." I answered, "Officer, I'll answer any questions you need for identification purposes but I 'm not going to make any other statements."

The officer's face turned red, and he ordered me out of the car and to place my hands on the trunk where he proceeded to arrest me, handcuff me and place me in the back of his blazer. He had forgotten to double lock the handcuffs. When handcuffs are not double locked they cinch tighter and tighter until they cut off circulation to the hands and can cause permanent nerve damage. I said, "Officer, you forgot to double lock the handcuffs." He smiled at me and replied, "I know."

Well, this officer had just arrested one of a dozen or so lawyers in the state of Arizona who specialize in police misconduct cases. I have tried police misconduct cases to State and Federal juries (one involving the failure to double lock handcuffs) and have argued Section 1983 cases to an en banc panel of
the Ninth Circuit. Boy had this cop picked the wrong person to punk.

I accused him of retaliation for the exercise of my right to remain silent. He had marked my car for towing as an "abandoned car") and threatened to book me for criminal sppeding through Holbrook, a reservation border town with the worst drunk tank in the state which is ninety miles from the arrest location.

Suffice it to say the cop finally realized that this would not be a good move on his part and he released me with a court appearance date for criminal speeding (I was not going that fast), a class one misdemeanor. I plead to civil speeding and am in the process of filing a Notice of Claim against him individually and will soon be filing a Section 1983 lawsuit in Federal court and a simultaneous lawsuit alleging only state law claims in State court. I can't wait for the first deposition when I can ask, "So officer, ready to answer some of my questions."

Two words: Hell yes.
(Note: If you want to claim credit for this comment, email me - federalist_no_84 [@] yahoo [.] com- and I will provide proper attribution, which can include a link to your blog or firm website - Fed.No.84).


Legal Loons

Apropos this post over at Notes from the Legal Underground (be sure to read the comments) comes Norm Pattis' latest column, It's a Looney Tunes World; Lawyers Play Part of Daffy (free registration required. But it's worth it to read Norm's weekly column). Writes Norm:

Any chance we can shut down the courts for a month and regroup? The headlines of late are grim and depressing. So much misconduct by lawyers that it has got me to wondering what's going on. I, for one, want a refresher on ethics and the basics.

Consider the following:

Norwalk's Sherri Paige suspended from the practice of law for one year. An Egyptian client fires her and demands his file. She threatens to report him to the Federal Bureau of Investigation as a possible terrorist. No Ashcroft Award for her?

Francis Glynn of Hamden reprimanded for not turning funds over to a client promptly. He is ordered to take an ethics course. He doesn't go to class, and gets suspended for 30 days. Perhaps a hearing test is in order, too.

Windham Senior State's Attorney Roger R. Caridad buys some time off when questions are raised about sexual and platonic relationships with people a little too close to a case he is prosecuting. Memo to Caridad: Don't do the hokey pokey at work.

Keith C. McDonough of Clinton gets suspended in California and now Connecticut authorities want parallel discipline here. He didn't pay a fine and practiced while suspended, California says. A simple "ouch" suffices here.


Grand Jury Nullification

        SAN FRANCISCO - A federal appeals court will untangle the knotty legal question of whether federal grand jurors have the power of nullification - to refuse to indict simply because they object to a law passed by Congress.       

A majority of the 26 active judges on the 9th U.S. Circuit Court of Appeals voted to reconsider a May ruling in a marijuana smuggling case, according to an order issued late Wednesday.      

In May, a divided three-judge panel refused to invalidate the standard grand jury instruction "you cannot judge the wisdom of the criminal laws enacted by Congress."      

The defense unsuccessfully argued the indictment should have been dismissed because the instruction violates the defendant's Fifth Amendment right to the unfettered judgment of grand jurors.      

At least 14 judges voted to put the question before an en banc, 11-judge panel for reconsideration.      

The original decision rejected the constitutional challenge by Steve Navarro-Vargas, who drove into the United States from Mexico through Tecate in 2002 in a car carrying 65 kilograms of marijuana, U.S. v. Navarro-Vargas, 2004 DJDAR 5337.      

Vargas pleaded guilty in 2002 and was sentenced to 21 months but with the condition he could pursue the challenge to the grand jury instructions.      

Judge Alex Kozinski, who issued a strong objection in the May decision, said, "I can find no source of authority for the district court to impose such a limitation on the grand jury. I believe the instruction constitutes an unauthorized substantive interference by the district court with the grand jury's traditional discretion."      

Kozinski argued that grand jurors act as the community's conscience.  "The grand jurors must decide whether conduct that appears to fall within the prohibitions of a particular statute does indeed merit criminal punishment," Kozinski wrote.