Waco Criminal Law Blog

Why politics and prosecution don't mix

Walter Reaves — Tue, 21 Feb 2012 08:16:25 -0600

I admit I'm not a big fan of politicians. With a few exceptions I don't think they truly believe anything. Instead, they are more worried about what the general public thinks - or at least what they believe they are thinking. In the area of criminal justice that can lead to disaster. Everyone thinks they want to be tough on crime - until it's someone they know caught up in the system, or they discover they don't have money to lock up everyone.

Prosecutors have to walk a fine - and there are very who do it well. They are charged with the obligation to see that justice is done. Unfortunately, that is not so easy to discern, or do. Justice does not mean locking up everyone and throwing away the key. Punishment is appropriate, but justice requires more than giving in to the interest of victims and the general public. Justice also requires considering the individual defendant, as well as the interests of the general public and society.

Every case is different. Crimes are committed in all sorts of ways. There are also all types of defendants and victims - where you have a victim based crime. No one approach can ever hope to balance all the varying circumstances. To be fair, some consistency is required - if for no other reason than to know where to start at. When you try to pigeon hole all cases into one disposition though problems are bound to arise.

What caused me to write about this is a post in Grits for Breakfast about the policy of the McLennan County District Attorney - Abel Reyna - to impose an increased fine on all defendants convicted of DWI. He says all t he things you expect a District Attorney to say when pandering to the public; they should of thought about the consequences before they did it, etc.... No doubt he wants to appear tough on DWI's - and is quite proud of that. There's nothing wrong with that ; unless of course you let political considerations influence the outcome of cases - which is exactly what is happening here.

Over the years the legislature has jumped on the DWI bandwagon - and used defendants as a means to raise revenue. The $1,000 surcharge has been a disaster, with the result that the legislature has been forced to set up a procedure for handling those individuals who can't pay it. They recognized too late what every one told them at the beginning - not everyone can pay that, and you are going to end up with a lot of unlicensed and uninsured drivers who have no other choice. (BTW - Scott Henson aka/Grits has long been advocate of an amnesty program for surcharge payments and has covered that issue better than anyone)

Is is really in the best interest of society to saddle defendants with costs they can never pay? No doubt some may choose to sit out their time in jail - which taxpayers will pay for. They will then lose their license, and get caught in the vicious cycle of trying to work and support their family without having a way to get to and from work.

There is one important thing prosecutors fail to consider when implementing a "get tough on DWI" policy. Most DWI defendants are average hard working people who made a mistake. They will probably never do it again, and they learned their lesson when you put them in the police car and threw them in jail. They are the people who pay taxes, support their schools and civic organizations, and generally keep society thriving. And by the way - they also vote.

Continuing to hold prosecutors accountable

Walter Reaves — Sat, 18 Feb 2012 15:47:02 -0600

By the time the dust settles the case of Michael Morton may end up being one of the most significant in the history of Texas Criminal justice. On it's face, Morton's case does not appear to that much different from the scores of other exonerations over the last few years. What is different is the focus on how he got convicted in the first place - which was due mostly to prosecutorial misconduct. That involved not only withholding evidence at the first trial, but also fighting efforts to secure DNA testing.

The most recent development is the order granting a court of inquiry to look into the activities of the former District Attorney - Ken Anderson - who is now a sitting District judge. A court of inquiry is an unusual proceeding, which is aimed at investigating misconduct. They are seldom used, and I can't remember a situation where it has been used to investigate a prosecutor's actions in handling a criminal case. Instead, in the past prosecutors have essentially been granted a free pass, no matter how egregious the conduct.

I've written before about the lack of any meaningful sanctions for misconduct. If a defendant is lucky he might get a new trial, but that was not even a given. Prosecutors were rarely criticized, and if they were, nothing was done. The result was the creation of a culture of invincibility; they could do anything, and no one would question them. I'm hopeful that is starting to change, and this is one more more instance that gives me hope.

I don't know whether prosecutors are starting to take their duty to deal fairly with defendants more seriously; I can't imagine they aren't following these cases. Surely if a sitting judge can be called to task that would suggest no one is immune. We still have to see what the outcome is, but I think the message is clear. The attitude of obtaining a conviction at all costs is not without risks and that can only be a good thing.

Giving credit where it's due - Court grants writ on actual innocence

Walter Reaves — Thu, 16 Feb 2012 21:20:38 -0600

Normally I'm critical of the Court of Criminal Appeals - over the last few years they have issued some really bad decisions. If you are going to criticize you need to recognize them when they do something right. They did just that this week in the case of Richard Miles.

Mr. Miles was convicted of murder and attempted murder based mostly an eyewitness and a criminalist who testified that residue found on the defendant's hands indicated he had fired a gun. He had a good alibi, but as usual that was not enough; Eyewitnesses almost always trump everything to the contrary. Over the course of the last few years - and through repeated open records request - he was able to obtain two additional police reports. One confirmed that there were other suspects, and another concerned an altercation the victims had before the incident. He also eventually obtained a recantation from the only eyewitness, as well as a statement from the criminalist that she would not testify again the same way she testified at trial. For what its worth, he also passed a couple of polygraphs.

The new suspect came from his girlfriend, who claimed he admitted to shooting two people. He had a record of violence, and also matched the description given by the witnesses - which the defendant never did. There was also evidence about an altercation the victims had been involved with earlier, where one of them had to pull a shotgun. The criminalist testified at the original trial that under FBI guidelines she believed the residue was the result of firing a gun. She later admitted that guidelines of the lab where she worked were different - the amount was not sufficient to say it came from firing a gun, as opposed to picking it up from innocent sources.

What makes this case was unique is that it wasn't based on DNA. There was a recanting witness, but it was an eyewitness who was emphatic at the time of trial that Mr. Miles was the person he saw. The fact that he was shorter, lighter skinned and had different clothes on didn't phase him - or the police. Nor did the alibi - which was provided almost immediately. The evidence of innocence was compelling, but in the past that has not been enough. It was here though, and maybe it signals a change in the way the Court is going to handle these claims.

Prevailing on an actual innocence claim is next to impossible - especially when you don't have physical evidence like DNA. Even though the court has acknowledged the problems of eyewitness identifications, that hasn't been enough to grant enough relief. There was a Brady claim here, which has increasingly been the basis for granting relief. You also had unreliable scientific evidence, but the court all but shut the door earlier on that as the basis for relief.

This case had a little bit of everything, and maybe that makes it unique. There was a Brady violation, bad eyewitness testimony, and faulty forensic testimony. Unfortunately, that is not that unusual. It is often the case that a number of different things go wrong when someone is wrongfully convicted. The courts have tended to isolate each issue, and not view them together, as the jury would. To their credit, they did that in this case.

I'm not going to get overly optimistic - but I can't help but feel encouraged by this decision - even if it did them two years to deliver it.

How dare you!

Walter Reaves — Thu, 09 Feb 2012 15:23:56 -0600

The criminal justice system functions reasonably well in most cases. The problem is that it is administered by individuals, and human nature being what it is people don't always do the right thing. Prosecutors and judges have a tremendous amount of power; unfortunately they don't always exercise that power well. This is a real problem for prosecutors, many of who are young and don't have the benefit of wisdom that can only be obtained through living. The idea that a 26 year old prosecutor is making decisions that affect the rest of someone's life ought to send chills down the spine of most people.

But that's not the point of this post. With so much power it's easy to see how it can go to the head of someone who is not well grounded - as the old saying goes "Power corrupts and absolute power corrupts absolutely". The end result is that some prosecutors can come to believe they are the law. Which brings us to the subject of this post, which is the recent controversy in Dallas County.

It seems that the District Attorney - someone who has done a lot a good things for criminal justice - decided that the criminal records of police officers should not be disclosed. Julia Hayes is a county court judge who didn't believe that was the law - which is what judges are supposed to do. In a recent trial the defense lawyer asked for the criminal history of all witnesses - a standard request. The assistant district attorney - Keena Miller - refused to turn over records for the officers. She continued to refuse even after the Judge ordered her to do so. The judge then did what judges do - she held Ms. Miller in contempt.

If that was all that happened there wouldn't be much of a story. What happened next is the story. The District Attorney sent Judge Hayes a letter directing her to appear before the grand jury; and what's more, she was the target of an investigation into official oppression. By coincidence, she was asked to appear the same day - and before - the hearing she had scheduled on the contempt order.

This is definitely a new one for me. I didn't realize that if the DA didn't agree with a ruling you could indict them. I naively thought that's what we have appellate courts for. Apparently I forgot one thing - the District Attorney is the law; the argument is simple - we are right, and if you don't agree then you must be abusing your authority.

Craig Watkins has done some good things with his conviction integrity unit, but that doesn't mean he gets a pass. I hope common sense prevails, because this is not going to go well for him. If he doesn't believe he can be forced to turn over criminal histories, let him appeal and get a decision. Don't shortcut the process, and put yourself above the judicial system.

Fortunately, this is a rare exception. But is a symptom of a bigger problem that we need to be aware of, and guard against. The problem is making sure there are checks on authority - especially when peoples lives are at stake. The District Attorney is not at the top of the totem pole; they are simply one of the participants in the justice system, just like defense attorneys and judges.

Arson update - Are th e courts finally getting it?

Walter Reaves — Wed, 01 Feb 2012 08:01:29 -0600

Thanks in large part to Cameron Todd Willingham and the work of the Innocence Project the problems with arson investigations are now well known. Almost everyone now concedes that there prior convictions that are flawed by investigations involving false assumptions and bad science (if it can even be called that) While courts - and individual judges - have publicly acknowledged the problem, they have been slow to actually do anything about it. Hopefully that may be changing.

Several recent cases show that the courts may be starting to take this seriously. The Third Circuit Court of Appeals last week sent a case back to the District Court for an evidentiary hearing. In doing so the court suggested that a conviction based on faulty science might constitute a due process violation.

In another case a federal magistrate in California in considering whether George Soulitous' 1997 conviction should be set aside because it was based on a faulty investigation. According to a former ATF agent:

Steven W. Carman, a fire investigator for 20 years with the U.S. Bureau of Alcohol, Tobacco and Firearms, said Modesto investigators relied on fire patterns and other forensic evidence that amounted to "a laundry list of things we used to believe broadly in this profession that have since been widely discounted."

Finally, an Ohio inmate is challenging his arson conviction before the parole board.

There is no doubt that these attacks are going to continue, as more cases are identified. Let's hope the Court's are up for the challenge.

Just how far can the police go?

Walter Reaves — Mon, 30 Jan 2012 07:43:56 -0600

Scott Henson at Grits for Breakfast commented on a story about the tactics used by the Austin Police Department in an attempt to gain a confession in an old case. The case was none other than the one that MIchael Morton was convicted for - the death of his wife, Christine. You probably remember that is the case where John Bradley fought for years to prevent DNA testing - testing that eventually cleared Morton and implicated another person - Mark Norwood.

In an attempt to gain a confession the Austin PD took a DNA report from another case and doctored it so that it appeared to be in Norwood's case. They then showed it to Norwood, claiming the DNA evidence pointed to him. According to the police they had already been verbally told the results implicated Norwood, but didn't have the report yet.

To Norwood's credit he didn't confess. Had he done so, the confession probably would have been suppressed. Does that mean the officers should be off the hook - no harm, no foul?

It surprises many people to learn that the police are allowed to lie to suspects. They can tell a suspect they have evidence that doesn't exist, or tell him witnesses have already given statements. While that doesn't seem fair, fairness has never been much of a concern to police. "The end justifies the means" is a belief that is entrenched in law enforcement. And there really is nothing to curb the potential for abuse.

We know innocent people confess. And even if they aren't innocent does that mean that police should be able to use whatever means are necessary to solve a case?

Scott believes the investigators in this case may have problems, and I hope he is right. While officers have a right to lie, they don't have a right to create and manufacture evidence, which they did here. Clearly they violated the Texas Statute prohibiting tampering with evidence. (Art. 37.09) But will they ever be prosecuted? My guess is no. After all, a prosecution might chill future investigations, and allow criminals to go free. And who would have to prosecute them - the prosecutors they work with on a regular basis.

I've written before about the need to hold prosecutor's accountable - otherwise there is no incentive for them to do the right thing, and follow the rules. The police are no different. There are laws on the books, and they aren't immune just because they are the ones who enforce them.

This is definitely a story worth following.

Has the Court buried its head in the sand on eyewitness ID's

Walter Reaves — Mon, 16 Jan 2012 09:57:46 -0600

Last week the Supreme Court decided a case that some thought might produce additional protection against bad eyewitness ID's. I wasn't so hopeful, and unfortunately I was right. As it turned out the only positive thing that came out of the decision in Perry v. New Hampshire is the dissent from Justice Sotomayor.

The facts were pretty straightforward. Police responded to a call about someone bringing into cars in a parking lot. They detaineda young man in the parking lot, and while some of the officers talked to him others went to talk with the witness. When asked to describe the suspect she looked out the window and pointed to the young man standing between two police officers, and said "that's him." The issue was whether that process was unduly suggestive and the decision came down to whether the police were responsible for the suggestive procedure. Since the court found they were not, they concluded there could be no due process violation.

Over the last few years the reliability of eyewitness identifications has been identified as the single biggest factor in wrongful convictions. Research shows they are terribly unreliable, and sometimes no more accurate than a guess. The court's have started to recognize this - which was the reason for optimism in the case. While the they recognize the problem though, they refuse to address it.

The Court in Perry continues to rely on the traditional concepts of cross examination and zealous advocacy. The idea that a skilled lawyer can poke holes in a bad ID is appealing. However, it is not accurate. Many of the cases involving wrongful convictions involved skilled lawyers who did everything they could. Despite everything we know, courts, jurors and prosecutors still hold on to the belief that if a witness identifies a defendant then it must be them.

The courts are supposed to be gatekeepers of evidence. I've commented before about what a poor job they do of that in cases involving scientific evidence. They do an even worse job here. Evidence that is not reliable should not come in - but that is exactly what the court sanctions in Perry. Unless the police had some hand in securing the identification, a court has no authority to keep it out. After all, its up to the jury to make those decisions.

The end result is that its business as usual. Defendants will keep being convicted on identifications that are unreliable, and judges will turn the other way. There has to be a better solution, and we need to find it fast.

Is Supreme Court sending signal on Brady violations?

Walter Reaves — Thu, 12 Jan 2012 10:23:47 -0600

The Supreme Court reversed a conviction this week on a Brady violation. The case Smith v. Cain is another one of Louisiana - and presents a claim that probably would have been dismissed a few years ago.

Smith was convicted of killing five people during an armed robbery. There was only witness who was able to identify Smith, who he said was the first person through the door. After he was convicted and his appeal was denied Smith filed a writ of habeas corpus in State court, which was also denied. The writ was based in part of the failure to disclose notes from the investigating officer; those notes indicated that he talked with the witness on the night of the offense and he could not provide a description of the assailants, and also talked with him several days later and was told he could not identify anyone. The Supreme Court found those notes were material, and were significant enough to reverse the conviction.

The decision was 8-1, with Judge Thomas dissenting. In his dissent he set out the other evidence, which he claimed would have negated the impact of the investigator's notes. The other evidence is not that different from other cases where the court has denied relief. There was another investigator who testified that the witness gave a description although he could not remember exactly what it was. The investigator who made the notes also testified that the witness gave a description, which was brown skin person with short haircut, who had lots of gold of teeth. The witness had been shown several line-ups and did not identify anyone. When he was finally shown one with Smith he identified him immediately, stating he would never forget that face. At trial he also identified him, saying it was the same mouth and the same teeth.

The inquiry in any Brady case is whether the evidence was material - which requires the defendant to show a "reasonable probability" the result would have been different. In this case, the issue is whether the notes would be enough to discredit the identification. There's no doubt its a subjective decision, and I think this case shows the courts may be looking at such claims differently.

It wouldn't take long to find a number of cases with similar - if not more compelling facts - where relief has been denied. So what's the difference? I would like to think that it is the result of a shift in attitude and perception. Several years ago courts refused to believe prosecutors withheld evidence. Now they have no problem accepting that it happens. - the question is how often. Perhaps it's also a recognition that the State shouldn't be rewarded for breaking the rules.

Whatever the reason, it's a welcome change. More still needs to be done - especially in the area of holding prosecutors accountable. But you have to start somewhere, and granting relief on Brady claims is a great place to start at.

Goodbye 2011 - and good riddance!

Walter Reaves — Mon, 02 Jan 2012 18:17:08 -0600

This post is only marginally related to the practice of law. I say marginally because lawyers are human, and anything that affects their persona life has some impact on their professional lives.

2011 was not bad professionally, but one I'm all too happy to close the book on personally. My wife lost her 8 year battle with cancer in January. While I can't say it was unexpected, I certainly wasn't prepared. Her death was separated by only a couple of months from the death of my mother, as well as my mother in law. So I had more than just her death to deal with.

I've always been a pretty stable emotionally and expected to be deal with my wife's death with few problems - especially since I've had a long to think about it. Boy was I wrong. There were issues I have never anticipated, along with a general lack of motivation. I expected things to get better with time, which hasn't really happened.

I now have a far better insight into the feelings of loss, despair and depression that many of our clients experience. It's easy to think someone needs to "get over it", but it's not nearly as easy to do. Far too often I think we neglect the mental and emotional and issues our clients are going through - and as a result don't do the best we can for them. As lawyer we evaluate the legal and practical consequences of decisions, and sometimes that may not be the most important consideration for the client.

I'm thankful I have a job I love and still enjoy even after 30 years. It gave me a reason to keep on going, and get out of bed every day. It also gave me an escape - a way to avoid thinking (or confronting) some of the more negative thoughts I had. I cannot imagine what my life would be like if I didn't have some place to go every day.

When a spouse passes away you can't help but think about your purpose in life. For the past several years my main focus was on taking care of her, and helping her deal with the thousands of issues that come with fighting cancer. I'm still struggling with that, but I don't have to struggle with one thing - my desire to help individuals who find themselves on the wrong side of the power of the State. Nothing makes me angrier than to see someone taken advantage of by the system.. it happens far too often, and were it not for the thousands of good criminal defense lawyers it would happen more often still.

I'm not making any new year's resolutions, but I am re-committing myself to continue the fight. And I'm thankful that I still have the desire to do it.

Should judges look the other way in death penalty cases?

Walter Reaves — Thu, 20 Oct 2011 13:58:23 -0600

The Texas Court of Criminal Appeals decided an unusual writ case last week, which contains some disturbing admissions - at least they are disturbing to me. Hector Medina was appointed extremely competent lawyers to pursue an application for writ of habeas corpus in his death penalty case. His lawyer made a tactical decision to submit a cursory writ, which was only four page long. His reasoning - which I don't fully understand or agree with - was that he wanted to change the pleading rules in habeas cases.

The court recognized the writ was not complete, and there was probably a lot more there. However, they couldn't decide what to do. If they denied the writ then Mr. Medina had lost his chance at relief through post-conviction proceedings. They couldn't force the lawyer to re-file, nor could they find him ineffective because they have already held that there is no right to effective assistance in a writ proceeding. So they came up with a new approach - they found the writ was not a "cognizable writ application", held the lawyer in contempt and appointed new counsel.

All that's fine and good - at least Mr. Medina is not going to be executed without having presented a complete writ application, which the Court will probably deny. The disturbing part comes in the dissent of Justice Keasler, which points out that the application in this case is no different from others they have denied on the merits. He noted that during his time on the court he had seen a number of applications that were just as poorly prepared as this one, and they were all denied.

The disturbing part of that statement is that he acknowledges the Court knows they are denying relief when they know one someone has not been properly represented. Since you don't have the right to effective assistance, it's too bad. To me that is inexcusable.

If you are going to execute someone you should only do so after their case has been fully reviewed. Yet the court is affirming death sentences when they know the person's case is not being fully reviewed. While you would hope all lawyers would take their jobs seriously the said fact is we know they don't. The court shouldn't be able to pass the buck, and say "that's not my job." I would like to think this is a step toward that, but I'm not convinced.

If nothing else, this should show just how screwed up our death penalty system is.

Taking the definition of deadly weapon to new extremes

Walter Reaves — Thu, 20 Oct 2011 07:03:14 -0600

It's no surprise that legal terms and phrases seldom mean what you would expect them to mean. Nowhere is that more apparent than in the definition of deadly weapon.The Texas Penal Code defines deadly weapon as anything that in it's manner of use or intended use is capable of causing death or serious bodily injury. You don't have to to actually cause injury. Instead, the focus is on the intent, and the manner in which something is used. That all makes sense, until you see how the courts have applied it.

Over the years, the definition of deadly weapon has been expanded. Courts now hold that anything can be a deadly weapon. That was apparent in the recent case of poor Prisscilla Mechell. She was charged with aggravated kidnapping, injury to a child, and abandoning a child. The facts were that she took a baby from a friends house, and ended up leaving the child in a dumpster where she was later found. Although the child was severely dehydrated, there were no serious or permanent issues. The issue in the case was whether the dumpster was a deadly weapon.

The court had little trouble deciding that it was. The court found that the defendant used the dumpster to hide the baby, and that in doing so there was the possibility that death or serious bodily injury could result. While I'm not surprised,that seems to me to be a totally unwarranted expansion of the definition.

When you think of deadly weapon, you envision something that is actually used to inflict injury. The dumpster in this case was not used to inflict injury. It was the act of abandoning the child that caused the injury, and the dumpster was simply the place where he was left. Under the court's logic, any place the child had been left could be a deadly weapon. I suppose that if a parent runs off and leaves their children for an extended period of time, their house then becomes a deadly weapon.

The reason why a deadly weapon finding is important is because it increases the time a person must serve before they're eligible for parole. In some cases it also increases the grade of the offense, so it is an important finding. If you want to punish some offenses more severely that's fine. But engaging in mental gymnastics and legal fiction is not the way to go. It's time to return some common sense to the legal system, and this would be a good place to start.

How do you apply the scientific method in criminal investigations

Walter Reaves — Fri, 14 Oct 2011 15:25:32 -0600

If you read this blog you know I'm not a big fan of the way forensics is used in criminal cases. Many of the problems are the result of using techniques and processes that were not designed for determining a person's guilt or innocence. Another problem is that the scientific method does not parallel a criminal trial.

Under the scientific method you develop a hypothesis, and then try to prove it wrong. In most criminal cases it is the opposite. You try to prove someone is guilty, even if there is evidence to the contrary.

What made me think about this a decision out of New Hampshire (New Hampshire v. David McLeod) criticizing John Lentini, one of the leading arson experts in the country. Mr. Lentini's position is that you should start off with the presumption that the fire was an accident. He has a couple of reasons for that. One is that most fires are accidents. The more important one is that everyone is presumed innocent, so shouldn't you follow that in an investigation. The New Hampshire Court didn't like that approach, and prevented him from testifying.

The decision tries to portray Mr. Lentini as having an agenda - which he doesn't have. He has a presumption. What is the alternative - that you go in with an open mind - that's contrary to the scientific method, which the court believes it is following.

The problem with Mr. Lentini is that he's honest. He's admitting how he approaches the investigation. Those on the other side are not going to admit they assume the defendant is guilty, because that wouldn't look fair. Instead, they claim they will start of neutral.

The court relies on NFPA 921, which is the National Fire Protection Agency's guide to fire investigation. There's nothing wrong with that, and in fact it should be accepted - as long as you except everything in it, and not merely that which supports your position.

The NFPA calls for a systematic approach, and the court equates that with the scientific method. While that's part of it, so is testing a hypothesis, which you can't have if you are neutral. The end result in an arson case is that it was either an accident or arson. If you cannot disprove it was an accident a defendant should not be found guilty.

I don't know if the scientific method works or not in criminal cases. You are not dealing with absolute truths like you are in science. Instead, you are dealing many times with possibilities - what is more likely. Yet science still must play a role. If it is going to be the determining role - as it is in arson cases - I think fairness dictates Mr. Lentini's approach. Unfortunately, since that approach makes it more difficult to obtain a conviction, I doubt the court's will agree.

We are looking out for you - seriously

Walter Reaves — Fri, 14 Oct 2011 15:15:15 -0600

I recently commented on the release of Michael Morton after DNA evidence established another person's guilt. DNA evidence that John Bradley called a waste of time, and opposed. As I wrote that, the Court of Criminal Appeals was issuing an order declaring Mr. Morton actually innocent. They did soextremely quickly, and there's a story behind that.

It turns out that Mr. Bradley filed a request for an expedited decision. He was clearly concerned about Mr. Morton being cleared so he could obtain compensation - at least that he said. As you can probably guess, there's more to the story.

There was an agreement that Mr. Morton's lawyers could pursue discovery until the final order was delivered - discovery aimed at uncovering who did what, and who knew what. They believed they had at least 30 days to do that, and probably would have in most cases. By obtaining an expedited ruling they short circuited that process, before it even started. What will happen with the investigation is now up in the air.

So did they take this action out of concern for Mr. Morton, or as a strategy to ensure that the truth remain the hidden? If I had to bet I know where I would place my money.

Do people really care if prosecutors hid evidence

Walter Reaves — Thu, 13 Oct 2011 06:48:51 -0600

The Court of Criminal Appeals apparently moved Michael Morton's case to the head of the line and granted relief yesterday. While Morton may be out and waiting on his compensation check, it does not look like his case is going away anytime soon. The Innocence Project of New York appears to determined to find out who knew what, and a lawsuit may be in the near future.

What we know so far is that evidence pointing to someone else was not disclosed. Who did what is not clear, and as you would expect everyone is probably going to point the finger at someone else. We also know that Mr. Morton would have been out several years ago had John Bradley not fought DNA testing so aggressively.

This is not the first instance of a prosecutor being caught hiding evidence. I've commented before (here, and here and here)about the lack of incentives for prosecutors to hand over exculpatory evidence. If they don't the worst that happens is that the conviction is reversed. Even if that is far from certain though. Sanctions from the bar are not a real possibility, and they have immunity so you can't sue them. They are elected officials, but in the past voters have not seemed to care. I wonder if that might be changing.

Thanks to Scott Henson I saw an editorial in the Williamson county paper - Mr. Bradley's home town. John Bradley has been there forever - first as an assistant, and then a District Attorney, so I imagine his support his fairly solid. That did not keep the paper from criticizing him though:

Mr. Bradley should feel ashamed. His efforts to stymie DNA testing, along with his refusal to hand over exculpatory documents to defense attorneys, may have had consequences far beyond the wrongful conviction of Michael Morton.

An unnamed man's DNA is now connected to two remarkably similar murder scenes within miles of each other: Ms. Morton's in 1986 and Debra Baker's in 1988.

That mystery man, a violent criminal who may still be at large, may have had many more chances to kill again as Mr. Morton languished in jail. That is a terrifying thought.

Still, Mr. Bradley seems more interested in protecting his reputation than in bringing the real killer to justice.

I don't know when he comes up for re-election, and he may not even have an opponent. It will be interesting to see if his handling of this case - as well as others - will be an issue. If so, maybe the public really does care about prosecutors acting ethically and fairly - and following the rules before they lock someone up.

Changes in Expunction Law

Walter Reaves — Sun, 09 Oct 2011 16:20:11 -0600

Given the general stance of the legislature on criminal justice issues it might surprise you that they enacted some changes that are actually beneficial to those who have been caught up in the criminal justice system. One of those areas is Expunction, which addressses those situations where someone was arrested but the charges were either dismissed or never filed.

There have been problems in those situations where a person is arrested and charges are never filed. The courts have required individuals to wait until the statute of limitations expires before applying for an expunction. In cases where there is no statute of limitation - such as murder - you could never have your record cleared. There are also charges with lengthy statutes of limitation, such as most sexual assaults.

The legislature basically set up waiting periods: 180 days for a Class C misdemeanor, 1 year for Class A & B misdemeanors, and 3 years for felonies. The burden is on the applicant to prove that they were released, and that charges are no longer pending.

As you would imagine, the legislature is not going to tell the State to close their file and destroy all the records The order granting expunction must authorize the State to retain their records and files.

Another change is what can be termed a discretionary expunction. Previously, any agency listed in the petition could oppose it. DPS did that fairly regularly, which is why a lot of expunction cases have the Texas Department of Public Safety as a party. Under the new statute the prosecutor can agree to an expunction. Of course, a court must still sign the order, and might refuse to do so if there is opposition. This change could be significant in those cases where it is obvious no charges should have been filed, and the individual should not be forced to wait.

One other change removes the restrictions on prior felonies. Previously an individual could not receive an expunction if they had been convicted of a felony within the previous 5 years. That has been removed.

There is no doubt these changes are positive, and are going to allow a significant number of individuals to obtain expunctions who otherwise could not do so, or would have to wait for significant periods. If you are a lawyer, get ready for the questions; or even better, let your clients who qualify know they can now get some relief from the arrest that has been following them around.

Opening the Door on Pardons

Walter Reaves — Sun, 09 Oct 2011 12:05:13 -0600

We all make mistakes - especially when we are younger. Most of time you are able to learn from them and move on. Sometimes though the mistake may haunt you for the rest of your life. Criminal convictions fall into that category. Even though you may have been a model citizen for 30-40 years you are still labeled by your prior mistakes.

Over the last few years lawmakers have recognized how unfair that can be - probably because they knew people who were effected, including their own families. Several years ago Texas recognized a new procedure, where you could obtain an order sealing your record in some cases. The procedure is called "Non-Disclosure", and is limited to those cases where a person received deferred adjudication, and successfully completed it. While some doubt how effective that process is, it is certainly better than nothing.

Even if you receive a non-disclosure you still have the case - the arrest itself while sealed, may still be a liability. Now there is new option for persons who successfully completed a deferred adjudication - a pardon. The legislature amended Art. 48.01 to allow persons who completed their probation to receive a pardon from the governor.

To be eligible for a pardon you must wait 10 years after the date of discharge. That means you start counting when your supervision ends. The pardon application must be submitted to the Board of Pardons and Paroles, who will make the recommendation to the governor. For a checklist of how that operates - which has not been amended - you can go here.

I believe this a significant change, and one that is positive. The ability to obtain a pardon is close as you are going to get to clearing your record. Not surprisingly, I have heard the governor's office is expecting an avalanche of applications. I have no reason to believe they won't be seriously considered, since this was something supported by Governor Perry.

If you qualify, why not apply.

Where else can you get an award for obstructing justice

Walter Reaves — Wed, 05 Oct 2011 07:09:13 -0600

Those of you who followed the Willingham investigation probably remember that a judge started to hear testimony in a Court of Inquiry proceeding. A motion was filed to stop the hearing, which was ultimately successful. That motion was filed by R. Lowell Thompson, the Navarro County District. The end result was that witnesses who were scheduled and ready to testify never had a chance.

When combined with the actions of the Forensic Science Commission the goal of scuttling any inquiry into the investigation has been successful. There still has never been a hearing addressing the validity of Dr. Hurst's initial report, and there likely never will be. No matter what your position on the case is, I would think that is worrisome.

While I can't say that much surprises me about this case anymore, I was surprised when I learned that the Texas District County and Attorney's Association gave an award to Mr. Thompson at its annual convention recently. Normally, people get awards for doing positive things. Mr. Thompson got an award for derailing an investigation aimed at finding out what really happened. He was surprised, and so am I!

What is really disturbing are the reasons he advanced; perhaps he felt a need to justify getting an award. He stated he was concerned about a lack of local participation - which frankly is a legitimate issue. The problem is that he was not excluded. He had a full notice, as did everyone else. He could have come and sat down at the table, and cross-examined all the witnesses. Which would have been a good thing. He could have also presented his own witnesses - again a good thing. He had an opportunity to make the State's case and quiet all the criticism. Instead of doing that he went in and shut and it down.

The controversy over this case is never going to die down. A big reason is that instead of putting everything out there - and letting people make up their own minds - the strategy has been to brush it aside, and prevent any further investigation. Is that really something you should get an award for?

What would have happened to Amanda Knox in the U.S?

Walter Reaves — Tue, 04 Oct 2011 06:20:38 -0600

Unless you've been up in the mountains without media access you know that an Italian Court found Amanda Knox not guilty. This verdict followed the original verdict where she was found guilty of murdering her room mate. While I don't know much about the Italian justice system, it appears the appeal goes to a panel of judges, who review the evidence, and can hear new evidence. It was during this process that the reliability of the DNA evidence was questioned.

So what would have happened to Amanda Know in the United States? Her case would have gone to a Court of Appeals, who would review the trial for legal errors. Their review would be limited to the record of what happened at trial. They don't have authority to order new testing, nor do they have authority to hear evidence. If the reliability of the DNA evidence was questioned it would have been up to her lawyers to do that, and even if they produced the same evidence the Court wouldn't be able to consider it in the direct appeal.

A U.S. court also would not be able to decide whether she was guilty or not. Instead, they would review the evidence to determine if it was "legally sufficient", which basically means whether there was sufficient evidence to support the verdict. The court cannot make its own credibility decisions, but assumes the jury found the witnesses credible. Such review is extremely limited, and few cases are ever reversed on this basis.

So the short answer to the question is that she would still be in prison, and would probably be there for the rest of her sentence. Evidence of faulty test results could be presented in a writ of habeas corpus, but it is doubtful that would be enough - especially since the state still claimed there was nothing wrong with the DNA testing. The only time relief is granted in those situations is where the expert agrees they made a mistake, or there is no doubt about it. Clearly that was not the situation here.

It sucks to be convicted anywhere, but luckily for Amanda Knox she at least got convicted in a system that is designed to catch mistakes. We can probably learn a lesson from that.

There May be Hope for Eyewitness ID's

Walter Reaves — Thu, 29 Sep 2011 07:09:33 -0600

I admit I've been skeptical about the movement to reform eyewitness procedures. My belief was that you would end up with a bunch of nice policies and procedures that no one followed. Other than a confession, an ID is the easiest way to solve a case, and i could not envision the police accepting anything that made their jobs harder.

It appears I was mostly right. Except for a few of the more progressive departments, it appears most agencies had no intention of seriously implementing any changes. However, they may not be getting a pass. Thanks to Scott Henson (who is the innocence Project's representative on the group charged with coming up with model policies), we have a somewhat behind the scenes account of the first meeting of the working group. Here's part of Scott's account of the meeting:

Some law enforcement folks at the event seemed to be in a state of denial. The police chiefs association argued that the draft LEMIT policy was too detailed, including elements that shouldn't be considered "policy" but fall more in the realm of "procedures." This struck me as downright bizarre, not only because LEMIT was charged with creating a "detailed written policy," but because the statute in at least four different places directed them specifically to write "procedures" for various aspects of live lineups and photo arrays. The distinction being suggested by law enforcement interests would contradict the plain language of the statute (in case anybody cares about such things).

Indeed, hanging their hat in part on this spurious distinction between policies and procedures, a breakout group made up of law enforcement folks declined to come up with specific recommendations during the working group meeting, apparently hoping they could slow-walk the matter and delay the process. But SHSU must soon publish their draft in the Texas Register so they can receive formal public comment and finalize it by a statutory deadline in December. Participants in that subgroup were encouraged to stay after the event to complete their recommendations or to provide them via email in the next couple of weeks.

Court of Criminal Appeals Judge Barbara Hervey spoke up to debunk complaints that blind administration would be too difficult for small agencies to implement, demonstrating the simplicity of the "folder method" of blind administration, where photos are placed in file folders, shuffled, and presented sequentially so that the officer administering the procedure doesn't know which one is the suspect. That method was suggested by LEMIT as an alternative for smaller agencies to a truly blind administrator who's not one of the investigators in the case. In serious cases, though, if an agency is so small it can't provide a blind lineup administrator, they probably should be calling in the Texas Rangers or seeking help from larger agencies.

It appears many agencies were viewing the reforms as "suggestions" - which they didn't have to follow if they didn't want to. I can't say that's too surprising since it's not unusual for those in law enforcement to believe the law doesn't apply to them. But that's a discussion for another day.

I now have some hope that there will be changes. While I don't think they will go far enough, it's at least a start. If only a handful of people are spared from a wrong ID that's progress. However, until there is a legitimate enforcement mechanism, we are not going to get where we need to be. I guess you have to take baby steps - and I'm glad to see we are at least taking those.