Posts
Sometimes I assume people think I and my fellow defenders exaggerate the flaws we see in the criminal justice system or overstate how unfathomable and indefensible some prosecutorial decisions are.
For those people, I'd like to offer Aguilar v. Woodford as Defense Exhibit A. I'd really like people (especially the non-criminal lawyers) to read it. It's fact-intensive more than law-heavy, so don't be scared if you're not a lawyer.
For those of you who don't feel like reading it, here's a quick run-down: Victim is shot while driving his car. The passengers in his car are unharmed. Those passengers offer descriptions of the shooter, all of which put the shooter at shorter than Aguilar. Odd as studies show that witnesses tend to overstate the height of the person with the gun, not understate it. But there's another guy (named Osuna), facially similar to Aguilar, who is several inches shorter (you know, closer to the descriptions). And odd little fact: Osuna had a brother who was shot days before this shooting. Suspect in that shooting? Prize to you if you guessed the victim. Remember that the passengers were unharmed, suggesting this wasn't a gang-turf shooting, but a specific targeted shooting.
Then there were rumblings that Osuna was running around the neighborhood admitting he just shot a guy. And Aguilar's girlfriend/baby mama said he ran out of a gathering the day of the shooting when he saw the victim's red car drive by. Naturally, the prosecution didn't put much stock in that. But she did do lots of leg work to track down Osuna and find witnesses who would testify to his incriminating statements.
Certainly seems like there was at least enough reason to at least investigate Osuna, right? Yet for some reason, the prosecutor directed the police not to expend resources on Osuna because it would be a wild goose chase.
Since the case caption includes Aguilar's name, you should already have figured out that Aguilar was convicted of the murder. But with all this Osuna stuff, there's at least reasonable doubt, right? (Oh, silly naive kids who believe that juries actually respect the presumption of innocence and the state's burden of proof beyond a reasonable doubt.) What other evidence was there against Aguilar that led to his conviction?
Dog scent.
Yep, you read that right. A dog and his nose put Aguilar in prison with a life sentence. (I will not name the dog because darn it, it's not the poor pooch's fault that people have misused him in this way.)
Here's what the guy behind the dog scent nonsense does. He "rubs" a pad on the seat of the car known to have been the shooter's get-away car. He "rubs" another pad on the suspect's clothes. Then he has the dog smell the known pad rubbed on the clothes and takes the dog to a line-up of 4 pads, one of which is the pad with the car smell. And using his super keen sense of smell, the smart, smart doggy hit on exactly the pad the handler would have hoped, the one that came from the car. (Small detail: the smell test wasn't done until over a month after the murder, so it's highly questionable the smell would have lasted that long.)
The prosecution relied heavily on the scent "evidence" both with witnesses and in closing argument. And only after it's all over and Mr. Aguilar is sentenced to prison does the defense learn that the prosecution knew all along that this evidence was bunk. Or at least highly, highly questionable. The appellate decision talks about the dog having a high error rate, but I don't think that's fair. It's not the dog who screwed up. The dog probably picked up on cues and did exactly what his person wanted. But this same dog in a previous scent line-up had led to a guy who definitely didn't commit the crime as he was in jail when it happened, for example. Moreover, the DA's office had stipulated to this particular dog's high failure rate in a previous trial. After that previous stipulation, the chief public defender wrote a letter to the DA stating that the failure rate of the dog was exculpatory information that the DA should turn over in any case involving that dog. Apparently the lesson the DA took from that stipulation and subsequent letter from the chief public defender was that the office just shouldn't tell defense attorneys about the problems with that dog's evidence.
It's pretty well-established law that the state must turn over to the defense exculpatory evidence in its possession. It's also pretty well-established that if any one person in the state possesses the exculpatory information, that knowledge is imputed to the specific prosecutors on the specific case. This way, cops can't just squirrel info away in a hidden drawer without ever telling the prosecutor, thus keeping the exculpatory info from the defense. The fact that the dog scent line-up was so flawed and that the prosecution knew this particular dog didn't have a great track record was clearly exculpatory information that should have been disclosed, especially given how heavily the state relied on this evidence at trial.
And this is the kind of case I see way too often. At least as much, if not more, evidence implicating someone else. And yet a dogged determination for some reason I can never fathom to ignore the other suspect and focus solely on this guy. Reliance on junk science (see tonight's earlier post). Refusal to be open with defense counsel about the problems with that "scientific" evidence. Then on top of all that, it wasn't the first court who heard about the dog scent problem who granted Mr. Aguilar relief. It wasn't even the second. It was at best the third court who reviewed this case who finally acknowledged what a deeply-flawed conviction this was. That's how it goes way too often.
Yes, there are a lot of decent prosecutors and sensible courts. There are even defense attorneys who make arguments that should lose. But this stuff happens, too. We really aren't making it all up.
Monday, July 29, 2013
Suggested viewing for anyone interested in learning the truth about forensic sciences
I am just now getting around to watching an episode of Frontline, the PBS documentary, titled "The Real CSI." The episode originally aired in April 2012 and was recently re-aired. From the link, I believe it is now viewable online, though I can't guarantee how long it will be available if at all to you.
If I had my way, though, this would be required viewing for all prosecutors, defense attorneys, judges, CSI wannabes, and all prospective jurors. So basically all citizens.
Forensic sciences aren't what they're portrayed to be on t.v. They aren't what people on message boards think they are. More importantly, they frankly aren't how they're portrayed in court. Much of what passes for science in courtrooms is junk promoted by people who don't know what they're talking about. But they have degrees and lots of experience and they use big words, so their views are accepted by judges, prosecutors, and juries who don't have the expertise to see through the claims.
Prosecutors always bemoan "The CSI Effect," complaining that they can't get convictions without presenting scientific evidence. I think the real CSI effect, though, is rather the opposite: when the prosecution does put on scientific evidence, be it fingerprints or dog scent line-ups or bite marks or whatever, juries accept it.
On this show, one of the nation's most renowned fingerprint experts blew the reporter's mind by calling the act of declaring a fingerprint match to be a "leap of faith." The very premise of fingerprint analysis is based on an unproven (indeed a false) premise: that all fingerprints are totally unique. Poor Brandon Mayfield, the Portland attorney who was wrongly accused in the Madrid train bombings of 2004, exposed the untruth of that premise. It doesn't appear too many established FBI fingerprint examiners are too interested in figuring out if his case of mistaken fingerprint identity is an anomaly or the tip of the iceberg.
Science is complicated and something most of us don't think about much after we get done with the science requirements for graduating high school. I fear that most of us tend to defer to the "experts" too easily, having forgotten that a key requirement for any consideration of scientific claims is skepticism. Science can be a tremendous tool, when done correctly. But when it's bad... Well, it's like the girl with the curl: when it is good, it is very, very good, but when it is bad, it sends innocent people to death row.
So watch this episode of Frontline or read articles critical of forensic sciences. If you get called for a jury before doing either of those, though, here are some thoughts:
Be wary of experts who base their conclusions on their years of experience, not rigorous application of the scientific method to repeatable testing.
Be wary of experts who claim infallibility or no error rate.
Be wary of DNA analysts who declare 100% matches on partial DNA profiles or fingerprint examiners who declare matches on a small number of print points. Be very wary of the examiners who aren't open to considering the possibility that there are more DNA and fingerprint similarities than we had previously realized.
Microscopic hair analysis is bunk, so for sure be wary of anyone who says otherwise.
I know I've said all this stuff before elsewhere and have begged people to be more critical toward forensic sciences. But it needs to be repeated again and again as long as bad science is clogging our courts and sending people to prison.
If I had my way, though, this would be required viewing for all prosecutors, defense attorneys, judges, CSI wannabes, and all prospective jurors. So basically all citizens.
Forensic sciences aren't what they're portrayed to be on t.v. They aren't what people on message boards think they are. More importantly, they frankly aren't how they're portrayed in court. Much of what passes for science in courtrooms is junk promoted by people who don't know what they're talking about. But they have degrees and lots of experience and they use big words, so their views are accepted by judges, prosecutors, and juries who don't have the expertise to see through the claims.
Prosecutors always bemoan "The CSI Effect," complaining that they can't get convictions without presenting scientific evidence. I think the real CSI effect, though, is rather the opposite: when the prosecution does put on scientific evidence, be it fingerprints or dog scent line-ups or bite marks or whatever, juries accept it.
On this show, one of the nation's most renowned fingerprint experts blew the reporter's mind by calling the act of declaring a fingerprint match to be a "leap of faith." The very premise of fingerprint analysis is based on an unproven (indeed a false) premise: that all fingerprints are totally unique. Poor Brandon Mayfield, the Portland attorney who was wrongly accused in the Madrid train bombings of 2004, exposed the untruth of that premise. It doesn't appear too many established FBI fingerprint examiners are too interested in figuring out if his case of mistaken fingerprint identity is an anomaly or the tip of the iceberg.
Science is complicated and something most of us don't think about much after we get done with the science requirements for graduating high school. I fear that most of us tend to defer to the "experts" too easily, having forgotten that a key requirement for any consideration of scientific claims is skepticism. Science can be a tremendous tool, when done correctly. But when it's bad... Well, it's like the girl with the curl: when it is good, it is very, very good, but when it is bad, it sends innocent people to death row.
So watch this episode of Frontline or read articles critical of forensic sciences. If you get called for a jury before doing either of those, though, here are some thoughts:
Be wary of experts who base their conclusions on their years of experience, not rigorous application of the scientific method to repeatable testing.
Be wary of experts who claim infallibility or no error rate.
Be wary of DNA analysts who declare 100% matches on partial DNA profiles or fingerprint examiners who declare matches on a small number of print points. Be very wary of the examiners who aren't open to considering the possibility that there are more DNA and fingerprint similarities than we had previously realized.
Microscopic hair analysis is bunk, so for sure be wary of anyone who says otherwise.
I know I've said all this stuff before elsewhere and have begged people to be more critical toward forensic sciences. But it needs to be repeated again and again as long as bad science is clogging our courts and sending people to prison.
Wednesday, July 24, 2013
Amanda Bynes should not be a client
Have you been following the sad, strange saga of Amanda Bynes? No? Wait, do respectable, serious lawyers not read gossip websites? Well, I never claimed to be respectable. So I read them. Daily. As Melanie Griffith said in Working Girl, "You never know where the big ideas will come from." In this case, the story of Amanda Bynes has a little something to say about the criminal justice system.
First, do you all know who Amanda Bynes is? She had a couple of t.v. shows as a teen. She's been in a couple of teen movies, one starring Colin Firth, one taking my favorite Shakespearean comedy (Twelfth Night) into the wacky world of non-coed high school soccer. Her last credit was in 2010.
Over the last year or so, she's been making a lot of headlines. Allegedly throwing a bong out of a NYC apartment window as police were coming in. (I want to say the apartment was around the 20th floor, so if she did throw something out, it was a dangerous act, though apparently the thing landed safely on the roof of another building.) There's a pending DUI charge in LA. Aside from that, though, there have just been stories of odd behavior, twitter meltdowns and head-shavings and blue wigs and apartment evictions.
Throughout all of these reports we also have learned that her parents are frantic. They moved to California to try to keep a closer eye on her as her behavior deteriorated. (She responded by moving to NY.) They have contacted lawyers, perhaps even tried to use the media's coverage of her behavior to help them in their quest to get help for their daughter. We are also now learning that there have been signs of a pretty severe mental illness for a while, reports of her hearing voices and talking to the air.
But at this point, she is a grown adult so her parents can't force her to accept treatment for mental illness and the law requires an awful, awful lot before it will step in.
Finally, last night came the incident that might actually do the trick, though. Using gasoline and who knows what else, Amanda tried to start a fire on some random old lady's driveway. There are some reports that she was laying down, perhaps suggesting an attempt at self-immolation? I certainly hope not. Whatever she was thinking, the thing that seems to have saved the day is that she got gasoline on her dog. Distressed, she rushed the dog to the nearest place (a liquor store) and washed off the dog in the bathroom. (Clearly she wasn't thinking rationally if she was setting a fire with her dog there but didn't want her dog to get hurt.) The police caught up to her and took her in not on criminal charges but on an involuntary psych hold, called a 5150 in California law. (The dog is safe and sound with her parents.)
She will now be held by the state in a mental hospital while an evaluation is conducted. There's a good possibility now that her parents might be granted conservatorship over their daughter, which would allow them to commit her into treatment against her will. It's the same process that seemed to set Britney Spears on the path to recovery from her mental break.
Now the other important detail for my purposes is the responses on these gossip websites, all of which have comment forums. A lot of comments over the past months have expressed sympathy for what appears to be a pretty serious mental health breakdown. A lot of the comments, though, reject that, instead insisting that Amanda is just an asshole, a jerk, a selfish, spoiled brat. She needs to be arrested and put in jail before she hurts someone. There are also the "mental illness is no excuse" comments. Shoot, I've even seen people suggesting she's just copy-catting Britney's antics to garner sympathy or some such nonsense.
All I have been thinking while following this saga is how like some of my clients she is, in terms of behavior, anyway. Behavior spiraling out of control, eventually becoming dangerous and/or illegal. Then there's the similar frustration of not knowing what to do for a person who is acting out in the throes of mental illness but won't voluntarily seek help (the actual Catch-22 that if you're crazy, you don't know you're crazy).
But Amanda has some things going for her that my clients usually don't. First, she's got very dedicated parents who have been desperately trying to get her help and seem committed to continuing. Second, she does have financial resources. It seems these good parents took care to put much of her childhood earnings into trusts, so while she doesn't have ready access to burn through all of her assets, she does have assets that could presumably be used to pay for mental health services. Third, she got lucky with the arresting officers in the driveway fire incident as they saw the incident as a mental health issue. How the initial responding officers react has a lot to say about the initial treatment of the person. Does that person spend the night in jail before an attorney can get the case to a judge and a DA who might (but might not) see the mental health needs? Or does that person go straight to a psych ward for an evaluation? It's really rather amazing how much the police can dictate the path a case will travel. Imagine if the 911 call about Amanda's driveway antics had been answered by a police officer who subscribed to the "mental illness is no excuse" camp.
The sad truth is that for people like Amanda Bynes or so many of my clients, there aren't many great options. Even a young woman with supportive, involved parents and the financial resources to pay for treatment can't be made to get treatment until she gets a court's attention for breaking a few laws. It can't help that we have such a wide-spread cultural resistance to the very idea of mental illness. She's frankly a little lucky if courts and police being presented with her actions are all recognizing it as a mental health situation and not a criminal case. We massively underfund mental health services. Instead, we wait for people suffering from mental illness to commit crimes. And then we warehouse them in prisons and jails because we don't have anywhere else to put them. We have a mental health crisis in this country. We really, really need to do something about that.
I hope Amanda Bynes is able to find treatment that will help her. I hope that she isn't thoughtlessly labeled a "criminal" and I hope she isn't stigmatized as being defective or unfixable or worthless. I also sincerely hope that more people suffering from mental illness are also able to receive successful treatment and support long before they have to become my clients. I am not equipped to help them.
First, do you all know who Amanda Bynes is? She had a couple of t.v. shows as a teen. She's been in a couple of teen movies, one starring Colin Firth, one taking my favorite Shakespearean comedy (Twelfth Night) into the wacky world of non-coed high school soccer. Her last credit was in 2010.
Over the last year or so, she's been making a lot of headlines. Allegedly throwing a bong out of a NYC apartment window as police were coming in. (I want to say the apartment was around the 20th floor, so if she did throw something out, it was a dangerous act, though apparently the thing landed safely on the roof of another building.) There's a pending DUI charge in LA. Aside from that, though, there have just been stories of odd behavior, twitter meltdowns and head-shavings and blue wigs and apartment evictions.
Throughout all of these reports we also have learned that her parents are frantic. They moved to California to try to keep a closer eye on her as her behavior deteriorated. (She responded by moving to NY.) They have contacted lawyers, perhaps even tried to use the media's coverage of her behavior to help them in their quest to get help for their daughter. We are also now learning that there have been signs of a pretty severe mental illness for a while, reports of her hearing voices and talking to the air.
But at this point, she is a grown adult so her parents can't force her to accept treatment for mental illness and the law requires an awful, awful lot before it will step in.
Finally, last night came the incident that might actually do the trick, though. Using gasoline and who knows what else, Amanda tried to start a fire on some random old lady's driveway. There are some reports that she was laying down, perhaps suggesting an attempt at self-immolation? I certainly hope not. Whatever she was thinking, the thing that seems to have saved the day is that she got gasoline on her dog. Distressed, she rushed the dog to the nearest place (a liquor store) and washed off the dog in the bathroom. (Clearly she wasn't thinking rationally if she was setting a fire with her dog there but didn't want her dog to get hurt.) The police caught up to her and took her in not on criminal charges but on an involuntary psych hold, called a 5150 in California law. (The dog is safe and sound with her parents.)
She will now be held by the state in a mental hospital while an evaluation is conducted. There's a good possibility now that her parents might be granted conservatorship over their daughter, which would allow them to commit her into treatment against her will. It's the same process that seemed to set Britney Spears on the path to recovery from her mental break.
Now the other important detail for my purposes is the responses on these gossip websites, all of which have comment forums. A lot of comments over the past months have expressed sympathy for what appears to be a pretty serious mental health breakdown. A lot of the comments, though, reject that, instead insisting that Amanda is just an asshole, a jerk, a selfish, spoiled brat. She needs to be arrested and put in jail before she hurts someone. There are also the "mental illness is no excuse" comments. Shoot, I've even seen people suggesting she's just copy-catting Britney's antics to garner sympathy or some such nonsense.
All I have been thinking while following this saga is how like some of my clients she is, in terms of behavior, anyway. Behavior spiraling out of control, eventually becoming dangerous and/or illegal. Then there's the similar frustration of not knowing what to do for a person who is acting out in the throes of mental illness but won't voluntarily seek help (the actual Catch-22 that if you're crazy, you don't know you're crazy).
But Amanda has some things going for her that my clients usually don't. First, she's got very dedicated parents who have been desperately trying to get her help and seem committed to continuing. Second, she does have financial resources. It seems these good parents took care to put much of her childhood earnings into trusts, so while she doesn't have ready access to burn through all of her assets, she does have assets that could presumably be used to pay for mental health services. Third, she got lucky with the arresting officers in the driveway fire incident as they saw the incident as a mental health issue. How the initial responding officers react has a lot to say about the initial treatment of the person. Does that person spend the night in jail before an attorney can get the case to a judge and a DA who might (but might not) see the mental health needs? Or does that person go straight to a psych ward for an evaluation? It's really rather amazing how much the police can dictate the path a case will travel. Imagine if the 911 call about Amanda's driveway antics had been answered by a police officer who subscribed to the "mental illness is no excuse" camp.
The sad truth is that for people like Amanda Bynes or so many of my clients, there aren't many great options. Even a young woman with supportive, involved parents and the financial resources to pay for treatment can't be made to get treatment until she gets a court's attention for breaking a few laws. It can't help that we have such a wide-spread cultural resistance to the very idea of mental illness. She's frankly a little lucky if courts and police being presented with her actions are all recognizing it as a mental health situation and not a criminal case. We massively underfund mental health services. Instead, we wait for people suffering from mental illness to commit crimes. And then we warehouse them in prisons and jails because we don't have anywhere else to put them. We have a mental health crisis in this country. We really, really need to do something about that.
I hope Amanda Bynes is able to find treatment that will help her. I hope that she isn't thoughtlessly labeled a "criminal" and I hope she isn't stigmatized as being defective or unfixable or worthless. I also sincerely hope that more people suffering from mental illness are also able to receive successful treatment and support long before they have to become my clients. I am not equipped to help them.
Thursday, July 18, 2013
Die hard fan? Try die never. Sigh.
The movie "Fever Pitch" makes me cry. Every time.
Why? Not because of the love story happy ending crap. My heart is dead to that nonsense.
No, it's because of the damn Red Sox. They finally pulled it off, broke the curse, and won the World Series.
And every time I watch the end of that movie and see the recaps of just how they did it, the stupid little girl Royals fan who remembers 1985, who grew up listening to and/or watching every game possible, who named all her stuffed animals after her favorite players, who still gets giddy every March because this could be the year, well she gets all choked up watching how the Red Sox finally got back to the series. Because watching it, I can't help but think some day that could be the Royals, mounting a monumental comeback and magically erasing all the bitterness of the last 28 years. The mere thought of it makes me cry. Every damn time I watch that movie.
There is something seriously wrong with me.
- Posted using BlogPress from my iPad
Why? Not because of the love story happy ending crap. My heart is dead to that nonsense.
No, it's because of the damn Red Sox. They finally pulled it off, broke the curse, and won the World Series.
And every time I watch the end of that movie and see the recaps of just how they did it, the stupid little girl Royals fan who remembers 1985, who grew up listening to and/or watching every game possible, who named all her stuffed animals after her favorite players, who still gets giddy every March because this could be the year, well she gets all choked up watching how the Red Sox finally got back to the series. Because watching it, I can't help but think some day that could be the Royals, mounting a monumental comeback and magically erasing all the bitterness of the last 28 years. The mere thought of it makes me cry. Every damn time I watch that movie.
There is something seriously wrong with me.
- Posted using BlogPress from my iPad
Wednesday, July 17, 2013
Dear Zimmerman Jurors: You weren't given the full law. Oops.
Yes, I said I wouldn't write about the George Zimmerman verdict, so you can now call me a big liar or smugly think to yourselves that you knew I couldn't stay away from the big legal topic dominating the news right now. But today it occurred to me that there is a huge part of the self-defense puzzle that has been missing all along. And if it hadn't been missing, based on Juror B37's interview, I believe at least a couple of jurors would have realized they could legally find against Zimmerman. In fact, I think the question they asked was really meant to ask about this missing piece, they just didn't have the legal knowledge of how to ask the question.
And now the legal pundits I'm watching on CNN are missing it, too! (Hey, CNN, over here! Hire me! I would actually know all the relevant law before pontificating! Oh, that's not what you want? Ok, then.)
Here's why I've been puzzled by this case all along, and why so many of my fellow defense attorneys are and were troubled by the verdict, or rather by the idea that Zimmerman isn't legally culpable here. Because in all this talk of self-defense, Stand Your Ground (which wasn't a factor in this case, btw), and whether George Zimmerman sincerely believed his life was in danger (which isn't the test for self-defense, btw), a key piece was missing. It's a piece that I and my defender friends around here just filled in because we know it. That piece is that the initial aggressor can't provoke someone to use force against him and then claim a right to use deadly force in self-defense. This is the horn book criminal law we all learned in law school. It is absolutely the law in Florida. See for yourself here, in Florida Statute 776.041. (That link actually includes all the self-defense statutes, for your edification.)
What I have always thought about George Zimmerman is that he followed Martin and initiated communication with Martin. This is consistent with Rachel Jeantel's testimony. (Sorry, Juror B37, I found her entirely credible and I have a higher opinion of her than I do of you.) I disbelieve Zimmerman's story as to the extent of the pummeling he took from Martin. I have seen what someone looks like in the immediate aftermath of taking the kind of pummeling to the head that Zimmerman describes. Zimmerman's two small lacerations to the back of the head aren't it. Frustratingly, Juror B37 agrees that Zimmerman exaggerated some things. She also stated that Zimmerman confronted Martin, not the other way around.
The problem is that Zimmerman wasn't terribly fit or a skilled fighter. Martin had the advantage of youth and fitness and got the upper hand in the fight. There is evidence that Martin was at one point on top of Zimmerman, but there is also evidence that Zimmerman was at a different point on top. So it was a scuffle that moved and that no one but those two saw the entirety of.
But there is at least evidence to support the idea that Zimmerman began the confrontation. Whether by words or threatening gesture or actual physical contact isn't known. But as long as he provoked a physical response by Martin either by an actual physical act or the threat of the use of force, he doesn't get the benefit of self-defense, at least not to the same degree. (Having been followed by a creepy guy, let me tell you, I found that in and of itself a threat of force.) You don't get to pick a fight, get beaten, and then kill the guy you picked the fight with all in the name of justifiable homicide.
The district court, though, fell for the defense argument that the initial aggressor instruction should not be given in this case. Quite frankly, the district court was wrong. To give jurors a proper understanding of self-defense, the initial aggressor instruction should be given. The case the district court relied on didn't say not to give the instruction; it just said that the jury should be properly instructed that the initial aggressor can't just say something inflammatory, for example, but has to either use force or threaten force.
From Juror B37's interview and her explanation of the question the jury asked about manslaughter, this was exactly what the jury wanted to know. They were wondering if self-defense only mattered at the actual instant of the shot, or if factors from earlier on should count as well. They were trying to get at whether it mattered who started the confrontation. They just didn't know the right language to invoke, so they asked a wishy-washy question about what does manslaughter mean.
Had I been on that jury, I would have known to ask why the initial aggressor instruction wasn't included. I probably would have asked, "If we find that George Zimmerman was the initial aggressor, does that limit his ability to claim self-defense?" Or something like that. This jury literally had no idea that the law in Florida is that the initial aggressor can't claim self-defense in the same way the non-instigator can. But it appears that at least one or two of them would have invoked that perfectly legal concept if they had only known of its existence. (I have no doubt B37 would still have voted acquittal, but she says there were others who wanted to find something but felt utterly hamstrung by the law.)
And now Juror B37 is calling for the self-defense laws to be changed. Which is frustrating beyond belief because THEY DON'T NEED TO BE! She isn't talking about Stand Your Ground, because the initial aggressor thing applies to that claim, too. (Stand Your Ground laws should be changed, but that really isn't the legal concept that kept the jurors from convicting Zimmerman.) What she is talking about is the idea that self-defense can be invoked at any time by any person without regard to what happened in the 5 minutes leading up to that decision to use lethal force. She is talking about the initial aggressor concept. She is talking about the completely valid portion of Florida law that she and her fellow jurors were totally unaware of because the district court didn't give them the entire self-defense picture.
I can't say that the verdict would have been different had the jury been fully instructed on all of the relevant self-defense law. But I can't say it would have been the same, either.
And now the legal pundits I'm watching on CNN are missing it, too! (Hey, CNN, over here! Hire me! I would actually know all the relevant law before pontificating! Oh, that's not what you want? Ok, then.)
Here's why I've been puzzled by this case all along, and why so many of my fellow defense attorneys are and were troubled by the verdict, or rather by the idea that Zimmerman isn't legally culpable here. Because in all this talk of self-defense, Stand Your Ground (which wasn't a factor in this case, btw), and whether George Zimmerman sincerely believed his life was in danger (which isn't the test for self-defense, btw), a key piece was missing. It's a piece that I and my defender friends around here just filled in because we know it. That piece is that the initial aggressor can't provoke someone to use force against him and then claim a right to use deadly force in self-defense. This is the horn book criminal law we all learned in law school. It is absolutely the law in Florida. See for yourself here, in Florida Statute 776.041. (That link actually includes all the self-defense statutes, for your edification.)
What I have always thought about George Zimmerman is that he followed Martin and initiated communication with Martin. This is consistent with Rachel Jeantel's testimony. (Sorry, Juror B37, I found her entirely credible and I have a higher opinion of her than I do of you.) I disbelieve Zimmerman's story as to the extent of the pummeling he took from Martin. I have seen what someone looks like in the immediate aftermath of taking the kind of pummeling to the head that Zimmerman describes. Zimmerman's two small lacerations to the back of the head aren't it. Frustratingly, Juror B37 agrees that Zimmerman exaggerated some things. She also stated that Zimmerman confronted Martin, not the other way around.
The problem is that Zimmerman wasn't terribly fit or a skilled fighter. Martin had the advantage of youth and fitness and got the upper hand in the fight. There is evidence that Martin was at one point on top of Zimmerman, but there is also evidence that Zimmerman was at a different point on top. So it was a scuffle that moved and that no one but those two saw the entirety of.
But there is at least evidence to support the idea that Zimmerman began the confrontation. Whether by words or threatening gesture or actual physical contact isn't known. But as long as he provoked a physical response by Martin either by an actual physical act or the threat of the use of force, he doesn't get the benefit of self-defense, at least not to the same degree. (Having been followed by a creepy guy, let me tell you, I found that in and of itself a threat of force.) You don't get to pick a fight, get beaten, and then kill the guy you picked the fight with all in the name of justifiable homicide.
The district court, though, fell for the defense argument that the initial aggressor instruction should not be given in this case. Quite frankly, the district court was wrong. To give jurors a proper understanding of self-defense, the initial aggressor instruction should be given. The case the district court relied on didn't say not to give the instruction; it just said that the jury should be properly instructed that the initial aggressor can't just say something inflammatory, for example, but has to either use force or threaten force.
From Juror B37's interview and her explanation of the question the jury asked about manslaughter, this was exactly what the jury wanted to know. They were wondering if self-defense only mattered at the actual instant of the shot, or if factors from earlier on should count as well. They were trying to get at whether it mattered who started the confrontation. They just didn't know the right language to invoke, so they asked a wishy-washy question about what does manslaughter mean.
Had I been on that jury, I would have known to ask why the initial aggressor instruction wasn't included. I probably would have asked, "If we find that George Zimmerman was the initial aggressor, does that limit his ability to claim self-defense?" Or something like that. This jury literally had no idea that the law in Florida is that the initial aggressor can't claim self-defense in the same way the non-instigator can. But it appears that at least one or two of them would have invoked that perfectly legal concept if they had only known of its existence. (I have no doubt B37 would still have voted acquittal, but she says there were others who wanted to find something but felt utterly hamstrung by the law.)
And now Juror B37 is calling for the self-defense laws to be changed. Which is frustrating beyond belief because THEY DON'T NEED TO BE! She isn't talking about Stand Your Ground, because the initial aggressor thing applies to that claim, too. (Stand Your Ground laws should be changed, but that really isn't the legal concept that kept the jurors from convicting Zimmerman.) What she is talking about is the idea that self-defense can be invoked at any time by any person without regard to what happened in the 5 minutes leading up to that decision to use lethal force. She is talking about the initial aggressor concept. She is talking about the completely valid portion of Florida law that she and her fellow jurors were totally unaware of because the district court didn't give them the entire self-defense picture.
I can't say that the verdict would have been different had the jury been fully instructed on all of the relevant self-defense law. But I can't say it would have been the same, either.
Tuesday, July 16, 2013
Oh, Juror B37, you just make it too easy
I'm not going to say anything about the George Zimmerman verdict. As a defense lawyer, I'm ok with it. As a human, I'm not ok with Zimmerman's actions. I'm not ok with him thinking this verdict means his actions were perfectly ok. And I'm really not ok with him still carrying a gun wherever he goes.
But holy cow, I am fascinated by Juror B37! This lady is tone deaf, unaware, willfully ignorant and proud of it, disconnected, skeptical to an insane degree. I mean, this woman. She's left me speechless and yet with so very many avenues of response.
First, her voir dire is available to view up on Gawker. What I found interesting about that is how proud she is to be one of those people who just doesn't have time for anything. She doesn't watch t.v. She doesn't read. She doesn't surf the net. She just feeds her animals. Let me admit right now my bias against these people. These people who are above it, who are too good for the world. There's nothing virtuous in wrapping yourself in willful ignorance, in isolating yourself from your community. But she says these things with pride. I guess I'm just a lazy nogoodnik because I have all this time for reading the news, watching television (both edifying and craptastic), surfing the internet to expose myself to a wide variety of ideas and perspectives, and because I take a tremendous interest in the issues relevant to my community.
She also in this voir dire talked about how so many things can't ever be known. The media can't be trusted and never tells the truth. Even if they did, you could never possibly be getting enough information to make a full decision. You can just never really know. I hate this attitude and I think it's one of the most destructive trends in our current culture. There's nothing virtuous in insisting you can't ever really know something unless you were there. This is the same attitude that underlies unwillingness to accept the reality of climate change, evolution, and other well-settled scientific concepts.
I'm all for skepticism. I am an atheist, after all, because I can't take things on faith. But I can be convinced. When there's sufficient evidence, I can come to a conclusion. I think it's a weakness not to be able, or willing, to come to conclusions. People should have open minds and wait to hear evidence from multiple sources before coming to a conclusion, but they should feel free to at that point come to a conclusion. If they refuse to allow themselves to be convinced even when all of the evidence is in support of one side, that's not a good thing.
Juror B37's now infamous interview with Anderson Cooper makes it abundantly clear that she would do well to open herself up to the greater world around her. She would do well to read a book, a magazine, watch some documentaries, anything to get her out of her incredibly narrow viewpoint. Unwilling even to consider that race played a role in this case in any way. (It wasn't Martin's race that got Zimmerman's attention, just "circumstances" without even the slightest idea that his race might have been one of those circumstances.) Utterly condescending to Rachel Jeantel, feeling sorry for her lack of communication skills and education, projecting that Rachel felt "inadequate." Clearly unable or unwilling to picture the situation she was charged with judging from the perspective of the dead Black teenager. (Probably unable as she's never exposed herself to the kinds of reading or viewing or broader world experiences that help us view situations from perspectives beyond our own.)
It's not a matter of questioning her ultimate verdict so much as shaking one's head at the complete lack of awareness this woman displays. Did she have no clue at all how she sounds? Willfully ignorant, myopic, sheltered and proud of it. She must not have because she originally thought she would write a book about her experiences in this trial. It would make sense if she never exposes herself to anything outside of her small life that she would have no sense of how others might perceive her. I'm guessing she did not expect she would receive quite this much negative feedback. I certainly suspect she has no idea there are certain code words and phrases people associate with racism, so she wouldn't have any clue they were peppered throughout her interview. Now, 4 of her other 5 jurors have issued a joint statement distancing themselves from her Anderson Cooper statements, so at least those 4 recognize how tone deaf she appears to be (or at least they recognize that a large segment of society sees her that way and don't want to be tarred the same way).
After being introduced to this woman, via her voir dire and interviews, what I really want to do is subscribe her to a variety of magazines and send her a big shipment of books. I've got some documentaries in mind I would like for her to watch. And in return, if she had some similar recommendations for me, I would read or watch them. I do like to be introduced to new perspectives, after all.
But holy cow, I am fascinated by Juror B37! This lady is tone deaf, unaware, willfully ignorant and proud of it, disconnected, skeptical to an insane degree. I mean, this woman. She's left me speechless and yet with so very many avenues of response.
First, her voir dire is available to view up on Gawker. What I found interesting about that is how proud she is to be one of those people who just doesn't have time for anything. She doesn't watch t.v. She doesn't read. She doesn't surf the net. She just feeds her animals. Let me admit right now my bias against these people. These people who are above it, who are too good for the world. There's nothing virtuous in wrapping yourself in willful ignorance, in isolating yourself from your community. But she says these things with pride. I guess I'm just a lazy nogoodnik because I have all this time for reading the news, watching television (both edifying and craptastic), surfing the internet to expose myself to a wide variety of ideas and perspectives, and because I take a tremendous interest in the issues relevant to my community.
She also in this voir dire talked about how so many things can't ever be known. The media can't be trusted and never tells the truth. Even if they did, you could never possibly be getting enough information to make a full decision. You can just never really know. I hate this attitude and I think it's one of the most destructive trends in our current culture. There's nothing virtuous in insisting you can't ever really know something unless you were there. This is the same attitude that underlies unwillingness to accept the reality of climate change, evolution, and other well-settled scientific concepts.
I'm all for skepticism. I am an atheist, after all, because I can't take things on faith. But I can be convinced. When there's sufficient evidence, I can come to a conclusion. I think it's a weakness not to be able, or willing, to come to conclusions. People should have open minds and wait to hear evidence from multiple sources before coming to a conclusion, but they should feel free to at that point come to a conclusion. If they refuse to allow themselves to be convinced even when all of the evidence is in support of one side, that's not a good thing.
Juror B37's now infamous interview with Anderson Cooper makes it abundantly clear that she would do well to open herself up to the greater world around her. She would do well to read a book, a magazine, watch some documentaries, anything to get her out of her incredibly narrow viewpoint. Unwilling even to consider that race played a role in this case in any way. (It wasn't Martin's race that got Zimmerman's attention, just "circumstances" without even the slightest idea that his race might have been one of those circumstances.) Utterly condescending to Rachel Jeantel, feeling sorry for her lack of communication skills and education, projecting that Rachel felt "inadequate." Clearly unable or unwilling to picture the situation she was charged with judging from the perspective of the dead Black teenager. (Probably unable as she's never exposed herself to the kinds of reading or viewing or broader world experiences that help us view situations from perspectives beyond our own.)
It's not a matter of questioning her ultimate verdict so much as shaking one's head at the complete lack of awareness this woman displays. Did she have no clue at all how she sounds? Willfully ignorant, myopic, sheltered and proud of it. She must not have because she originally thought she would write a book about her experiences in this trial. It would make sense if she never exposes herself to anything outside of her small life that she would have no sense of how others might perceive her. I'm guessing she did not expect she would receive quite this much negative feedback. I certainly suspect she has no idea there are certain code words and phrases people associate with racism, so she wouldn't have any clue they were peppered throughout her interview. Now, 4 of her other 5 jurors have issued a joint statement distancing themselves from her Anderson Cooper statements, so at least those 4 recognize how tone deaf she appears to be (or at least they recognize that a large segment of society sees her that way and don't want to be tarred the same way).
After being introduced to this woman, via her voir dire and interviews, what I really want to do is subscribe her to a variety of magazines and send her a big shipment of books. I've got some documentaries in mind I would like for her to watch. And in return, if she had some similar recommendations for me, I would read or watch them. I do like to be introduced to new perspectives, after all.
Friday, July 12, 2013
An Open Letter to Ohio Prosecutors
I would like to introduce you to a concept with which you are obviously unfamiliar. It is called "the point of diminishing returns." It is the idea that in pretty much any human endeavor, there comes a point where more stops being better.
Let me give you an example. Say you like cheesecake and so you buy yourself a very nice cheesecake. Not just a piece, but the whole thing. You start to eat it and it is, in fact, as divine as you could have hoped. You enjoy bite after glorious bite. But then, you start to feel full. You enjoy the next bite a little bit less. And a little bit less. And a little bit less. Until you stop. If you don't stop, the bites will just taste worse and worse because there will be no more room in your body. Eventually, you'll throw up and then maybe you'll never be able to enjoy the taste of cheesecake again.
The point at which putting another piece of cheesecake into your mouth would be unpleasant is more or less the point of diminishing returns when you should just stop. Heck, there's a good argument to be made for stopping long before you get to that point.
How is this concept relevant to you, you might be asking? You have now filed 977 specific charges against Ariel Castro, the (alleged) Cleveland kidnapper/rapist guy. That is absurd. 977 charges is way, way past the point of diminishing returns.
I'm not entirely sure what your sentencing grids or ranges look like in Ohio. But I feel fairly confident that something like 4 counts of kidnapping and 10 or so counts of rape would net you more than enough convictions to absolutely, 100% insure that Mr. Castro's sentence would be far, far longer than his life expectancy. Add in those two murder counts you've charged and there really is no practical possibility that he would run out of prison term before he runs out of life.
Once you get past about 10 or 20 serious felony counts, you stop gaining anything by piling on additional convictions. It just isn't physically possible that a defendant, even a really despicable one who held 3 women and a young girl hostage for a decade, could serve 500 years in prison.
All you do by charging 977 specific counts is overwhelm everyone involved in the case and needlessly waste precious court resources. A legal assistant had to type in that entire 977 count charging document. Make copies for everyone. If about 5 counts fit per page (a rough guess from my experience), you're looking at a document around 195 pages long. Think of all the paper you're wasting. The cost of mailing that document to the relevant parties, or just the pain of carrying it if you opt for personal filing and service.
Then there's the amount of time it will take all of the lawyers and the court to read that entire document. The defendant is entitled to have the court read all of the charges against him in open court. Should a simple arraignment take 2 days? The potential jury instructions on that many counts would be even longer than the complaint. Oy, I don't even want to think about how long it would take the court to read jury instructions on 977 counts. The jury instructions would be the length of a Russian novel, and not the "short" one, "Crime and Punishment."
Signing the verdict forms would take days and would probably leave the jury foreperson with carpal tunnel.
We haven't even talked yet about how ridiculously long a trial would take if the parties had to pay attention to the facts necessary to support the elements of every single one of the 977 counts. It makes my head spin to think about.
More is not better. Justice does not demand you file 512 different kidnapping counts. Truly, 4 will do. As for the 446 rape counts, I respect the idea of not wanting to say there are just 3 counts, one for each of the 3 women. But how on earth are you going to introduce testimony of 446 specific sexual events? Do these women really remember that many specific dates and instances? Is making them rehash the details of that many specific instances really the best thing for their own healing? When perhaps 3 or 4 counts per victim would more than max out this man's sentence?
Save yourself, the defense, the court, the jurors, and all the support staff who has to handle this case a whole lot of trouble. Wade through the victims' stories and find the 5 most compelling claims for each of them. Pursue those, and only those, charges. The practical sentence for Mr. Castro won't be any less this way than it will be if you pursue all of those 977 charges. But a very large, ugly trial will be prevented from turning into a decade-long circus that overwhelms all involved. Oh, and the taxpayers will probably appreciate it if you don't needlessly waste the millions of dollars these additional, unnecessary 950 counts will add to the final bill.
Filing this many charges doesn't make you look tough; it just makes you look reckless, greedy, and undisciplined. Just like eating too much cheesecake, it's probably going to make you very, very sick.
UPDATE: The indictment was far longer than my understatement (what can I say? I put the brief in legal briefs). It was actually 576 pages. My arms hurt just thinking about picking up that office file.
Let me give you an example. Say you like cheesecake and so you buy yourself a very nice cheesecake. Not just a piece, but the whole thing. You start to eat it and it is, in fact, as divine as you could have hoped. You enjoy bite after glorious bite. But then, you start to feel full. You enjoy the next bite a little bit less. And a little bit less. And a little bit less. Until you stop. If you don't stop, the bites will just taste worse and worse because there will be no more room in your body. Eventually, you'll throw up and then maybe you'll never be able to enjoy the taste of cheesecake again.
The point at which putting another piece of cheesecake into your mouth would be unpleasant is more or less the point of diminishing returns when you should just stop. Heck, there's a good argument to be made for stopping long before you get to that point.
How is this concept relevant to you, you might be asking? You have now filed 977 specific charges against Ariel Castro, the (alleged) Cleveland kidnapper/rapist guy. That is absurd. 977 charges is way, way past the point of diminishing returns.
I'm not entirely sure what your sentencing grids or ranges look like in Ohio. But I feel fairly confident that something like 4 counts of kidnapping and 10 or so counts of rape would net you more than enough convictions to absolutely, 100% insure that Mr. Castro's sentence would be far, far longer than his life expectancy. Add in those two murder counts you've charged and there really is no practical possibility that he would run out of prison term before he runs out of life.
Once you get past about 10 or 20 serious felony counts, you stop gaining anything by piling on additional convictions. It just isn't physically possible that a defendant, even a really despicable one who held 3 women and a young girl hostage for a decade, could serve 500 years in prison.
All you do by charging 977 specific counts is overwhelm everyone involved in the case and needlessly waste precious court resources. A legal assistant had to type in that entire 977 count charging document. Make copies for everyone. If about 5 counts fit per page (a rough guess from my experience), you're looking at a document around 195 pages long. Think of all the paper you're wasting. The cost of mailing that document to the relevant parties, or just the pain of carrying it if you opt for personal filing and service.
Then there's the amount of time it will take all of the lawyers and the court to read that entire document. The defendant is entitled to have the court read all of the charges against him in open court. Should a simple arraignment take 2 days? The potential jury instructions on that many counts would be even longer than the complaint. Oy, I don't even want to think about how long it would take the court to read jury instructions on 977 counts. The jury instructions would be the length of a Russian novel, and not the "short" one, "Crime and Punishment."
Signing the verdict forms would take days and would probably leave the jury foreperson with carpal tunnel.
We haven't even talked yet about how ridiculously long a trial would take if the parties had to pay attention to the facts necessary to support the elements of every single one of the 977 counts. It makes my head spin to think about.
More is not better. Justice does not demand you file 512 different kidnapping counts. Truly, 4 will do. As for the 446 rape counts, I respect the idea of not wanting to say there are just 3 counts, one for each of the 3 women. But how on earth are you going to introduce testimony of 446 specific sexual events? Do these women really remember that many specific dates and instances? Is making them rehash the details of that many specific instances really the best thing for their own healing? When perhaps 3 or 4 counts per victim would more than max out this man's sentence?
Save yourself, the defense, the court, the jurors, and all the support staff who has to handle this case a whole lot of trouble. Wade through the victims' stories and find the 5 most compelling claims for each of them. Pursue those, and only those, charges. The practical sentence for Mr. Castro won't be any less this way than it will be if you pursue all of those 977 charges. But a very large, ugly trial will be prevented from turning into a decade-long circus that overwhelms all involved. Oh, and the taxpayers will probably appreciate it if you don't needlessly waste the millions of dollars these additional, unnecessary 950 counts will add to the final bill.
Filing this many charges doesn't make you look tough; it just makes you look reckless, greedy, and undisciplined. Just like eating too much cheesecake, it's probably going to make you very, very sick.
UPDATE: The indictment was far longer than my understatement (what can I say? I put the brief in legal briefs). It was actually 576 pages. My arms hurt just thinking about picking up that office file.
Tuesday, July 9, 2013
In which the George Zimmerman prosecutors tick me off
Look, whether he's convicted or acquitted, George Zimmerman is morally responsible for Trayvon Martin's death. On a personal level, I'm not on Zimmerman's side here because guys like him, wannabe heroes who carry guns and think they can take on bad guys themselves (and are apparently eager to see bad guys), scare the living daylights out of me. I don't want the George Zimmermans of the world patrolling my neighborhood because I don't want people to get shot. It's undeniable that if Zimmerman hadn't been out there patrolling, Martin wouldn't have gotten shot. Also, I've been in Martin's shoes of walking home after dark and realizing someone is following you. It is terrifying and from my view even if the person being followed initiated conversation, the follower is the aggressor.
So there's my disclosure before I rant about something that happened in the Zimmerman trial today. The defense put on a forensic expert who testified that Martin's gunshot was consistent with Martin having been on top of Zimmerman. It was good testimony from the defense, especially if you think it's important for the self-defense claim who had the upper hand in the struggle at the moment of the gunshot.
What did the prosecution do to try to discredit this expert on cross? The prosecutor asked the expert how much money he was getting paid. Suggesting this professional with all his credentials was biased toward the people who paid him. That he would risk his career, his license, his freedom even (perjury is a crime, after all), to collect a fat check from George Zimmerman. 'Cause that makes sense.
This line of questioning happens in pretty much every trial whenever the defense has the unmitigated gall to put on an expert who doesn't work for a state crime lab. It is offensive, infuriating, disingenuous. It is also (infuriatingly) entirely effective with jurors.
It's too late in the day for me to write a long, scholarly discussion on this topic. (It's one of a couple of topics I'm kicking around for a law review article.) So instead let me just state how awful this line of questioning is, how utterly unfair it is that prosecutors are allowed to suggest defense experts are biased paid liars while their experts are all altruistic saints who just speak truth for no compensation.
The state has crime labs and medical examiners at the ready, experts who are all on salary and thus don't submit hourly bills for their time on each case. Somehow, people seem to think this makes the coroner who did the autopsy or the DNA analyst from the crime lab qualitatively different from the experts employed in private practice the defense has to go to. Since we get hourly bills, the argument goes, our experts are lying money whores.
Ugh. The whole thing makes me angry. Shame on prosecutors for putting the idea out there. Shame on courts for validating it as a legitimate point. And shame on juries for falling for it.
- Posted using BlogPress from my iPad
So there's my disclosure before I rant about something that happened in the Zimmerman trial today. The defense put on a forensic expert who testified that Martin's gunshot was consistent with Martin having been on top of Zimmerman. It was good testimony from the defense, especially if you think it's important for the self-defense claim who had the upper hand in the struggle at the moment of the gunshot.
What did the prosecution do to try to discredit this expert on cross? The prosecutor asked the expert how much money he was getting paid. Suggesting this professional with all his credentials was biased toward the people who paid him. That he would risk his career, his license, his freedom even (perjury is a crime, after all), to collect a fat check from George Zimmerman. 'Cause that makes sense.
This line of questioning happens in pretty much every trial whenever the defense has the unmitigated gall to put on an expert who doesn't work for a state crime lab. It is offensive, infuriating, disingenuous. It is also (infuriatingly) entirely effective with jurors.
It's too late in the day for me to write a long, scholarly discussion on this topic. (It's one of a couple of topics I'm kicking around for a law review article.) So instead let me just state how awful this line of questioning is, how utterly unfair it is that prosecutors are allowed to suggest defense experts are biased paid liars while their experts are all altruistic saints who just speak truth for no compensation.
The state has crime labs and medical examiners at the ready, experts who are all on salary and thus don't submit hourly bills for their time on each case. Somehow, people seem to think this makes the coroner who did the autopsy or the DNA analyst from the crime lab qualitatively different from the experts employed in private practice the defense has to go to. Since we get hourly bills, the argument goes, our experts are lying money whores.
Ugh. The whole thing makes me angry. Shame on prosecutors for putting the idea out there. Shame on courts for validating it as a legitimate point. And shame on juries for falling for it.
- Posted using BlogPress from my iPad
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