You have the right to confront your accuser, as long as it's not too inconvenient.

Yesterday, the US Supreme Court heard arguments in a case that I think ought to be a no-brainer. The issue is this: in a criminal prosecution, can the state present a certified lab report as evidence without bringing in the person who prepared that report to testify? I frankly don't understand why this is even a question.

The 6th Amendment protects the right of criminal defendants to confront their accusers. It's obvious that an eyewitness who will testify he saw you commit the crime is an accuser as is the police officer who found the baggie of white powder in your coat pocket. But what about the lab tech who tested that white powder and decided it was cocaine? Well, isn't the person who says the stuff you had is illegal just as much of an accuser as the person who says you had it? Like I said, it seems pretty obvious to me.

At the oral argument, the tack the state of Massachusetts took was that it would be an undue burden on the state to have to bring these witnesses to court in every case. Huh? It would be too inconvenient for the state to bother with each and every defendant's confrontation clause right? Those who observed the argument don't seem to think that a majority of the court will go for the state's argument, but I'm perturbed that the argument wasn't laughed out of court. The 6th Amendment does not contain a convenience exception.

The state suggested that there is no real benefit to be had to the defense in cross-examining these lab techs because the report is really nothing more than data spewed out from a machine. This argument is a troubling reminder of how infallible the state wants everyone to believe its scientific evidence is. But no scientific evidence is infallible. And none of it is simply data generated by a machine without any human input or interpretation. All scientific evidence IS potentially infected by human error. If defendants are denied the opportunity to cross-examine the actual people who performed the tests, they may never uncover whether human error could have corrupted the results.

Take for example a DNA analyst who doesn't use the proper procedure in cutting samples. When the evidence in a given case comes into the lab, there are usually several different cuttings, from clothing items, carpet, etc. There are also the known swabs taken from the defendant, the victim, or some other person relevant to the case. So this big pile of evidence comes to the lab and needs to be prepped for testing. There are necessary protocols to follow to make sure no DNA from item 1 gets mixed in with item 2. Defense attorneys need to be able to question the person who handled those samples to make sure the proper steps were followed. Say the lab analyst testified she used the same blade for all her cuttings and used only alcohol to clean the blade in between. Well, that's defense gold because alcohol doesn't kill DNA (the blade should be discarded or cleaned with bleach to prevent cross-contamination). If that lab analyst were allowed simply to submit a lab report without having to testify, the defense would never have been able to show the jury the problems with the DNA testing.

In any scientific testing, or generation of any type of report, there are legitimate avenues of cross-examination regarding whether the specific individual who handled the evidence or simply oversaw the machine that spewed out the data followed all of the proper protocols. More than that, though, most scientific evidence does involve at least some element of subjectivity or interpretation. In those situations, a defendant has to be able to question why the analyst interpreted the data the way s/he did. There are just basic credibility issues that can't be overlooked. Is this lab analyst trustworthy? A corner-cutter? A slacker? Or less knowledgeable about the testing procedure than s/he would have us believe?

The bottom line is it just can't be good enough for the state to present a lab report to convict my clients. Bring in the real, live person who conducted the test so we can find out whether this person really knows what the heck s/he is doing and whether this person's opinion is at all shakeable. I don't care that it's logistically difficult, or even expensive, for the state to have to transport witnesses around the state. Why on earth should that inconvenience to the state trump a defendant's right to confront the witnesses against him/her? Here in my state, I've never known the state to try to admit just the lab report into evidence without bringing in the analyst to testify. I really can't imagine that the criminal justice system in any state will collapse under the incredible burden of complying with the 6th Amendment.

I am confident that the Court will also conclude that a decision in favor of the defendant in this case won't unduly burden the 50 states. But I really wish the Supreme Court hadn't been quite so willing even to consider the state's argument.

Proud Mama

Maddie has learned to high five. When we hold a hand up and say, "High five," she will tap the hand with her paw. Clearly, she is a brilliant dog.

The Court has finally seized some measure of control over the circus surrounding the 8 year-old boy accused of double homicide. A gag order was issued today to stop the bleeding of information the public should never have heard. Juvenile matters are generally supposed to be kept confidential so the issuance of a gag order should come as no surprise. But it is rather appalling that the court had to take that step to stop the Keystone (err, St. Johns, Arizona) cops from saying more than they had already.

The gag order is too little too late as it's already been reported far and wide that the child "confessed." This would pose more of a problem in an adult case or in a case here in Kansas where the defendant would get a jury trial. If this case proceeds to a bench trial, we can more reasonably expect a judge to put news coverage of the case out of his/her mind. The defendant will still suffer damage from the police publicizing the fact that they got the kid to confess. Especially in the internet age, this kind of information, once public, doesn't die. Theoretically, this child is supposed to be able to get a clean slate and try to build a life without this hanging over his head. He is supposed to be able to keep the public from knowing all of the details of his juvenile history. But that went by the wayside in this case where police officers have been making the rounds of the national morning news shows. Hey, police, just because the press asks for an interview, doesn't mean you have to grant it. It's perfectly acceptable, and in this case preferable, to say, "This case involves a juvenile and therefore we are not able to discuss it."

In my state, ethics rules prohibit prosecutors from releasing to the public the existence of a confession. I believe that's a pretty standard ethical rule across the country. The rule has been interpreted to include the police. As in other realms of prosecution, the buck, ethically, stops with the prosecutor. All acts by the police and all information in police files are attributable to the attorney. The state can't do bad things and then hide behind the claim that the actual prosecuting attorney had no knowledge. In the case of confessions being mentioned to the public, though, I never see prosecutors taken to task for the release, which I find infuriating. If there are never any negative consequences for the release of this information, what incentive is there for police departments to stop giving press conferences? We need to start holding prosecutors and police accountable for these deliberate attempts to prejudice the public against suspects.

This case is a good example of why it's so damaging for police to reveal the mere fact that a confession exists. In this case, I can't imagine that this alleged confession will ever be admissible at trial. As I understand it, the police interrogated this boy without a parent or an attorney present. Depending on Arizona state law, that might be all that is necessary to make the statement inadmissible in court. Beyond the lack of a safe adult in the room during the interrogation, I can't imagine that the state can prove the kid's waiver of his 5th Amendment right against self-incrimination was a knowing and voluntary waiver. I would really enjoy watching that hearing. Even though the confession itself is highly suspect to the point of being inadmissible in a court of law, its existence is widely known in the court of public opinion.

I've also read that the police in this town are hoping the kid can be charged as an adult. I hope that is a mistake, but with the way this police department has handled the case to this point, I would believe someone there thinks an adult prosecution of this 8 year-old is warranted. I have to believe that the prosecution wouldn't think trying this case in adult court is even an option. And I am fairly confident that no court in the country would buy the idea that an 8 year-old is competent to stand trial in an adult criminal court.

If the police really do have it right about who pulled the trigger here, I just hope that this case will be handled with much more caution, care, and reason than the police department has demonstrated. If this 8 year-old is in fact going to be prosecuted for murder, this is most definitely not just another murder case.

I have complained on this blog before about charging young kids, 12 and 13, with murder and trying to remove them to adult court, but this one sounds too extreme even for the most hard-core tough on crime crowd.

Boy, 8, charged in double-homicide - www.msnbc.msn.com on 11/8/08

An 8-year-old boy has been charged with murder in the shooting of his father and another man in a rural community in eastern Arizona, authorities said Friday.from the juvenile justice system, but today's story takes the cake.

First, I'm stunned to learn that in Arizona, kids as young as 8 can be charged with crimes. In most other states I am familiar with, anyone under 10 cannot be charged even in juvenile court. Instead, the case is treated like a child in need of care case. The idea is to identify the child as one who needs intervention, therapy, and/or removal from a bad home. No state would be prohibited by law from using the court system to address the needs of an 8 year-old who commits a bad act. The only question is which part of the court system.

I do not think criminal charges are ever appropriate for someone this young. Regardless of how bad the act, the brain of an 8 year-old simply is not sufficiently developed for the child to possess the necessary criminal intent. In fact, Arizona law holds as a general rule that a child lacks competency to be held accountable for murder, but exceptions can be made. As of this moment, the prosecution is hoping to prove such an exception should be made in this case.

Even if we think there are some sociopathic kids who have no ability to sympathize and thus will always be a threat to society, I am troubled by the idea that we would give up and accept that that is the kind of child we're dealing with here rather than throw everything we've got at fixing this kid. How anyone can look at an 8 year-old and see a cold-blooded murderer is beyond me. It's a kid. And I, for one, am not ok with throwing the kid away forever. Especially in this case, where there is no sign that this child has had any behavior problems in the past. It may be hard work to make this kid healthy, but it's our responsibility as the adults to try.

Another troubling aspect of this case is the police interrogation of the boy. How can our "increasingly professional" police forces (according to the US Supreme Court) make such a basic mistake as questioning an 8 year-old without a lawyer or an adult family-member in the room? That's such an obvious no-no. I find it disheartening to know that there are still detectives who think this is an acceptable way to conduct the investigation of a juvenile defendant. It isn't. As the defense attorney interviewed in the article points out, two men with guns accusing a small boy of two murders are probably pretty scary. Anything a child says in response can't be trusted.

When will we return to a more rational approach to children who do bad (even really bad) things?

Pipe Dream

I had a dream that my once-liberal sister was returning to the fold. Once upon a time, she was just as much of a liberal Democrat as the rest of us. I had a dream that we might be getting her back.

I had a dream that she had grown disillusioned with the Bush presidency and with the party that supported him. I had a dream that she had become so disgusted by the McCain campaign tactics that she would not have been able to vote for him. I had a dream that, at least for the next 4 (I'm hoping 8) years, my sister, my parents, and I would have been able to gather for holidays without one of us supporting such radically different politics from the rest of us. Think what nice meals we could have if my uber-politically-aware family could have a nice, happy conversation instead of the tense, sometimes tear-filled conversations that have prevailed (mainly because my father can't not share his contempt for Bush at every opportunity) for the last 8 years.

Sigh. I woke up tonight. She has become a one-issue voter. She voted for the pro-life guy against the baby killer. That's really all that matters to her anymore. Apparently she doesn't care about health care or education or intellectualism or our standing in the world. (If she legitimately thought McCain was better on any of these points, that would be fine, but she doesn't. She only cares about abortion.) And she has totally bought into the right-wing meme of completely biased, in the bag for Obama mass media though she can't actually tell me any concrete, specific examples of what she means by that. Sigh.

And so my family is stuck with 4 more years of tense, uncomfortable holiday meals. But I can hold out hope that it will only be 4. Because President Obama will be such a fantastic president that she will be persuaded to vote for him for his second term and we can once again be a happy, united family. Hey, a girl can dream.

Presidential Reflections

Lunch on Wednesday was a happy affair. We were all delighted with the election results as the man we had supported won this time around. For most of us, that hadn't been the case for many years. We certainly all also appreciated the enormity of the vote from an historical perspective. Even those Americans who supported McCain were surely touched by the significance of our nation, with its fractured racial history, electing an African-American man to the presidency.

At lunch, I talked some about how affected I had been by seeing African-American men on television trying to digest the reality of what had just happened. Seasoned political reporters seemed at a loss for words. Jesse Jackson had tears streaming down his face. These men had all achieved great things, educations and careers and a role in national forums, but they had never before seen a President-elect who looked like them. I can only imagine what an emotionally overwhelming moment that was.

My female colleague and friend was sitting across the table from me as I spoke. I looked at her and remarked, perhaps wistfully, that I couldn't help but wish it was us who could finally experience the feeling of seeing someone who looked like us ascend to the presidency. One of our lunchmates said, "Can't we just get past this idea of us and them?" It was not a confrontational tone, but there was a hint of exasperation or maybe annoyance. I didn't say anything at the time, but what I thought was, "Said like someone who's never had any trouble seeing himself in the President." Basically spoken like a white male.

White boys in this country have never had difficulty really picturing they could grow up to be president because they have always had examples of white men who did grow up to be president. Rural or urban, rich or poor. White boys have never needed much imagination to see themselves doing great things. Pictures through our history were full of white men ruling. But girls or African-American kids had to draw something new into the picture to put themselves in it. I don't think we should be faulted for having the occasional failure of imagination.

This country has a long and storied history of discriminating against racial minorities and of treating women like the weaker sex. Surely that's undeniable. We've made tremendous strides on both fronts, especially in the last 50 years. That is equally undeniable. As I wrote in an earlier post, I do believe that the women a generation younger than me have been raised to believe that a woman can, and someday soon will, be president. Yay! That's great. But you can't just expect minorities and women to wake up the morning after Barack Obama is elected president and say, "Ok, we're all better now. Our history is totally and completely behind us in all respects. No subconscious vestiges remain. It's all done."

Yes, we should all act on the assumption that anyone of any race or sex or sexual orientation can be elected to any office. Children should be raised to believe that and to strive, therefore, for whatever they can dream up. Believing it's possible is 90% of the battle. But the bottom line is this: seeing is believing.

So don't blame me for desperately wanting to see someone JUST LIKE ME make it to the top. You can't just expect me to take it as a given that this country is ready to elect a woman. The fact is we haven't. And you can't just expect me to take it on faith that sexism really had nothing to do with Hillary's loss in the primaries. I don't believe it was the only factor, but I absolutely believe it was a factor. And Sarah Palin was a joke, who only served to damage the perception that a woman could be a serious candidate on the issue that is the biggest problem for female politicians: foreign policy.

In the rational, reasonable parts of my mind, I do believe that we have reached a point in our nation's history where the right candidate can be elected president, regardless of race or sex (probably not religion or sexual orientation yet). But the ranks of "right" women or minorities are just a whole lot more limited. I can't even think who the next serious contender for president could be. (Don't dare say Sarah Palin to me.) So deep down, in my heart of hearts, I'm not convinced we're really all ready to put a woman in the highest office in the land.

And so I reserve the right to harbor a secret, little doubt that won't go away until I see it happen. And, oh, how badly do I want to see it happen!

Message to my parents

Remember the 2004 Democratic Convention? Remember the keynote speaker? He gave a stirring address, rejecting the politics of division. Urging us to remember that we are not blue states and red states, but the united states. He was young and inspiring and exciting. Remember how we were talking later that year about who might be the Democratic candidate in 2008? I said it would be that speaker. You looked at each other with that "isn't our idealistic daughter cute in her naivete" smile and told me in that "you're too young to REALLY understand politics" tone that it would be someone, anyone, else.

I should have reminded you that I was an accomplished criminal defense attorney, over the age of 30, and had put myself through law school. Oh, yeah, and I had a political science degree from an excellent institution of higher learning. I didn't say any of those things. I let you pat me on the head and pooh pooh my crazy theories. Maybe I even let your claims to superior understanding of all things presidential politics dissuade me from my pick.

Well, Mom and Dad, it's now November 5, 2008. And it gives me tremendous pleasure to utter those four magic words: I told you so!