Speaking of eyewitness identifications... Excluding the circle drawn around the photo, what's different about photograph number 5? There's nothing unnessarily suggestive about that, right? Shaun Martin has more details.
Scroll down to the bottom of this page for a lot of news about a garden-variety case. One problem with trying cases to the media is that the lawyers on both sides must feel enormous pressure to produce something new every day. What is the defense lawyer hoarding for tomorrow's release? Will the defense or prosecution make something up? Given the case's significant national publicity, where will the trial be held?
It's unlikely that the Duke lacrosse players will want to be tried in Duharm, NC, which has a very high black population. When they file the inevitable motion for a change of venue, why should the judge grant it? After all, the taint is nationwide, and Durham is as good a venue as any for the case.
If the case goes to trial, there will be a lot of pressure from Durham politicos to keep the case local, as the news crews will bring added revenue to the city. Surely the trial court will feel the pressure to keep the prosecution local.
Unlike the Enron prosecution, this is a very simple case with easily-understandable evidence. Almost any juror who reads the newspaper will have a quick handle on it. Will they be challenged for cause?
Would we want jurors who knew nothing about this case serving on the jury? On the one hand, that might mean uneducated jurors. (Though, in college, I was too busy reading books to read newspapers and watch TV, and before 9/11, I did not even know who Bin Laden was. So the jurors might be ignorant but smart.) Then again, this case comes down to "horse sense."
Is the accuser lying? Were the young men even present during the rape? Was the ID legit, or did the complaining witness simply pick out the young men who had scratches on them?
You don't need a formal education, and you don't need to watch the news, to decide this case. Perhaps it's better to have "ignorant" jurors hear the case.
Norm's post reminded me of a pretty scary story from a couple of summers ago.
My wife and I were walking our dog when a man on horseback approached us. He began talking about his dog (a blue heeler), and complimented our dog. We talked a while and got to know each other. He said that 33 years ago on this date he was fighting for his life in Vietnam. I didn't belive him. Then he grabbed at his wrist, and a look of shock came over his face.
"I lost my bracelet. It had the name of the only Ranger from my company still missing in action. It has not left my hand in 20 years. Oh my God, would you please help me find it?"
I am generally suspicious of people who claim to have served in the military; more suspicious when they claim to have been a Ranger. I also did not want to prance through a poison oak infested trail to look. However, I knew that if he was telling the truth, I was under a moral obligation (as a patroit and responsible citizen) to help him look.
I looked at his wrist to see if he had a tan line. Sure enough, there was a tan line approximately the size of a POW-MIA bracelet. My wife and I agreed to help him look. He rode off in one direction; we walked in the other.
About 30 seconds later, my wife asked, "What hand was the tan line on his wrist on?" "Uh, the right," I replied. "Are you sure, because I thought it was on the left," she answered.
I thought about it and realized that I was not sure. My wife thought about it and realized that she was not sure. Even though both of us paid particular attention to this detail, we would not bet anyone's life on it. Each day people who weren't paying as much attention as my wife and I were paying make this bet when they ID someone. That's scary.
Ian Best, who has been on a roll, has compiled a listing of blogs that have been cited in law review articles. (C&F has been cited once, though I have no idea what article cited us.) Check it out.
A story in today's New York Times raises an interesting question: What is more important, getting a conviction in a criminal case, or protecting the innocent against false accusations?
It turns out that new procedures in the identification of suspects by way of police lineup are resulting in fewer positive identifications of suspects, and more identification of innocent people as perpetrators.
The traditional simultaneous lineup procedure involved placing a group of suspects before a witness. By comparing and contrasting the suspects, a witness could ponder which person, if any, was the perp. The danger in the procedure was the subtle assumption that at least one among the group was correct. Rather than picking the right person, the wtiness was feared to pick the one who looked most like the perp.
Reforms in lineup procedures require that witnesses be shown one photo at a time. And these photos are shown in such a way as to limit or eliminate subtle sources of selection bias law enforcement officers may signal in the procedure.
The results have been disappointing: fewer positive identifications, and, when there is an identification, more misidentification. In a controlled experiment in Illinois, witnesses chose the correct person 60 percent of the time using the simultaneous method, as opposed to 45 percent of the time using sequential lineups. The wrong person was picked 9 percent of the time using sequential lineups, as opposed to 3 percent of the time using simultaneous procedures.
So now the debate will renew: Should we retain the simultaneous lineup?
The data suggests we might want to consider scrapping both. The Times reports that each year 77,000 people are put on trial as a result of lineup identification. That number seems too high. I doubt there are 77,000 criminal trials in the country in a given year.
But if 77,000 people are charged as a result of lineups, a claim that seems more likely, then with simultaneous lineups, we are charging the wrong person 2,310 times; using sequential lineups, the wrong person is charged 6,930 times. That's hardly reassuring, unless our goal is simply to close files with arrests.
Aside from the issue raised in the cert. petition, there is something seemingly quite remarkable about United States v. Gonazles-Lopez. Namely, that the case's procedural background. First, a quick background of the charges.
Cuauhtemoc Gonzalez-Lopez (nicknamed "Tomas") was accused of being part of a drug conspiracy. The evidence against him was thin, and consisted almost entirely of another member of the conspiracy, and Tomas' friend, claiming that Tomas gave him money to buy drugs from a druglord. Later, the friend claimed, he brought the drugs he purchased with Tomas' money to Tomas.
Tomas claimed that he gave money to his friend because his friend's daughter had a medical emergency and money was needed to pay medical bills. Thus, the government's case was based uponTomas' friend's credibility. At trial, that credibility went unimpeached. On remand, and after Tomas was convicted, the witness' story changed, climaxing with this "Perry Mason moment":
MR. LOW: Isn’t it true that you just came up with that story about making a trip to Maryland Heights to Tomas’s house to deliver drugs? You just made that up in February of ’03; isn’t that true?
MR. GUILLEN [Tomas' friend]: Yeah, that’s true.
MR. LOW: It’s true, isn’t it?
MR. GUILLEN: Yeah.
Wow. The government's star witness changed his story. That should have been good cause to dismiss the case, right? After all prosecutors seek just rather than convictions, and thus would have moved to dismiss the case. Right?
Wrong. According to a Standford law student who worked on the case:
On remand, Low deposed Jorge Guillen, the government’s star witness. Under Low’s questioning, Guillen admitted to lying during his testimony and offered an alternative explanation for Gonzalez-Lopez’s actions on the night of his arrest, which undercut the government’s theory of the case. After the deposition, the United States sought a stay in the proceedings and petitioned for cert.
So it was only after the government didn't think it could re-convict a potentially innocent man that it petitioned for cert.? Can that really be correct? It sure seems that way, though I would love to hear from others with knowledge about the case.
Karl Dickhaus of Saint Louis, Missouri tried his first federal criminal case the other day. He lost. He wasn't supposed to try the case. That role was to go to out-of-state counsel, a man for whom Dickhaus was to serve as local counsel. However, the trial court would not grant the motion to permit out-of-state counsel to appear.
The United States Supreme Court today heard argument on whether this violated the defendant's right to counsel of his choice. United States v. Gonzalez-Lopez (No. 05-352)
I wrote about this case the other day. And I read press coverage of argument today. Who is Karl Dickhaus, anyhow, and how did he find Joseph Low of California?
Mr. Dickhaus attended Gerry Spence's Trial Lawyer's College in Wyoming in 2001. On the college's alumni bulleting board, Dickhaus lists his specialties as junk fax litigation and consumer law. That's a long way from criminal defense.
Mr. Low teaches on the staff of the college. I'm betting the two met there. Mr. Low's swashbuckling demeanor undoubtedly impressed Mr. Dickhaus. Legends grow beside the college's campfire, even if some of the tales are tall.
One of Mr. Low's websites boasts that he is a "national trial lawyer." On another website he specializes in nursing home abuse. On another he is a master of personal litigation. And don't forget the site devoted to securities fraud. If memory serves, the young lawyer has not yet been practicing a decade. Is there anything in which he does not specialize?
The Gonzalez-Lopez case is troubling. Undoubtedly, Mr. Low took a hefty fee to represent the defendant. When the court denied the man Mr. Low's services, it appears Mr. Low did not refund the fee so that he could find a competent criminal lawyer. (I suspect there is at least one in the state who is not also a specialist in half a dozen other things.) Instead, the defendant was led to apparent slaughter at the hands of a lawyer reduced to accepting notes from counsel sitting in the galleries.
This is good lawyering from neither Mr. Dickhaus nor Mr. Low.
Of course, the outcome was good for Mr. Low. The press has hawked him as an "expert" and a "specialist." But in what?
Sure the phone will ring. I guess that is what it was all about. But I suggest Mr. Low amend his retainer agreement to require that fees be returned if he is not permitted to unpack his bag in the next state in which he hooks up with a summertime pal from the ranch.
Ian Best, who has exceeded anyone's expectations with his incredible blog, has two short interviews with judges, who comment about blogs. Interview one is here; interview two is here.
There is a good reason fiscal conservatives with hearts of stone should oppose the current overcriminalization crisis: Keeping people in prison in expensive.
If you put a person in prison, you're putting him on welfare, since we have to pay for his care and feeding while he's in prison. What's worse is that many people sentenced to prison have jobs. (Which is one reason judges take a defendant's work history into consideration when sentencing - or not - a person to prison, and which is a good reason for judicial discretion at sentencing.)
Let's say a person is convicted of a non-violent offense and will likely not re-offend. It's almost certain that he will be male, and it's likely he will be the sole provider for his family. If we put in him prison, not only are we paying money to incarcerate him, we're also going to support his family. Because, without dad around, mom and the kids will likely be on welfare. Plus, we lose the tax revenue since the family won't be spending as much money, and thus won't be paying sales tax.
I realize that, for many people, using prison as a form of punishment feels goods. It's fun to imagine some shady character being raped in prison. After all, humans are vengeful creatures, and have a need to inflict harm. But, for the love of God, consider the fiscal impact. Is scratching the revenge itch really worth tens-of-thousands of dollars a year?
In a recent criminal case where the defense was self-desense, the defense lawyers challenged (in jest, I'm sure) the prosecution team to a fist fight. The motion actually seemed to have had a point. The defense lawyers (seemingly) represent a small man on trial for murdering a much larger man. The defense lawyers thought it was unjust to try the weaker of the two, and thus said to the (smaller) prosecutors: "Let's see if you want to put your principles into practice."
Of course, the defendant was on trial not because he defended himself, but because he stabbed his alleged attacker over a dozen times. Which has me wondering.... Shall the prosecutors file a "Motion for a Stabbing"? These motions, after all, should cut both ways.
In any event, the rather amusing motion work can be found here. I saw the link on Orin's site. Orin himself might be in for a fist fight, if he keeps making remarks like these: "I would have added "sic" [when noting] errors in the [motion], but there would have been too many to actually follow the sentence. Respectfully submitted, indeed."