Mommy was right about how much cooler I would be after my haircut. I usually don't cuddle with Mommy overnight in the summer 'cause I'm just too hot. I just sleep on the cool floor. But last night, I was cool enough to sleep on the bed. In fact, I got so chilly, I got under the blanket like I love to do. I think Mommy loves it when I do that, too. She seemed really happy when she woke up and found me curled up right next to her.

But she might have been happy for other reasons. She kept using weird words I didn't understand, mojito and jello shot. Maybe those things had something to do with how happy she was last night...

I got a haircut!

Mommy decided I would be too hot all summer with all my hair. So I got all my hair cut off. I do feel much cooler and lighter. And when I go hiking through the back yard and swimming at the lake, it will be much easier for Mommy to find all the burrs and stickers that get on me. Plus, if I get any icky ticks, Mommy will be able to see them.

If you've never seen me before, I was much shaggier this morning. Picture Rolf, the Muppet. But shaggier.

With all my hair gone, I think I'll have even more energy. I'll wake up earlier and I won't get hot on walks as fast, so I'll want to go even farther. Mommy will be so happy she did this!

To many people outside of the criminal justice system, eyewitness testimony is considered the gold standard of evidence. When the general public talks about how sure they want to be of someone's guilt, they always mention eyewitnesses. But the truth about eyewitness testimony is very, very different from the public perception. I believe it is vital that we, the defense bar, get the message out about how very fallible eyewitnesses are, no matter how well-intentioned they may be.

First, let's be clear. There are two kinds of eyewitnesses: people known to the perpetrators and strangers. Obviously, if the eyewitness is the perpetrator's boss, sibling, spouse, etc., we aren't terribly concerned that the eyewitness has misidentified the perpetrator. Those witnesses may have credibility problems, but they're not wrongly saying the person known to them did it when it was really someone else entirely.

Stranger eyewitness identifications are where the problems I'm interested in come in to play. Quite frankly, stranger eyewitnesses are probably wrong as often as they are right. But they're still relied on as strong evidence of guilt. In the book Actual Innocence by Barry Scheck and Peter Neufeld, they looked at 62 cases of wrongful convictions and found mistaken identifications in 52 of them. That book was published in 2000, so we know even more now about how frequently mistaken identifications factor into wrongful convictions.

The case that has me thinking about this today is of Patrick Waller. He was convicted of crimes from a 1992 incident. A young married couple was abducted from the street at gunpoint by two men, robbed, and taken to an abandoned building where the woman was raped by both kidnappers. One of the two kidnappers left DNA evidence behind. An unlucky couple happened upon the building and were also taken inside. Patrick Waller was identified by a cop as one of two men who fled from police in that same area days after the crime. That cop suspected that the men who ran might have been the kidnappers. Police then showed the victims photo line-ups and 3 of the victims picked Waller out. Seems pretty unlikely that 3 of the victims would have picked out the same wrong guy, right?

But we now know that the unlikely scenario is exactly what happened. After years of fighting with the DA's office, defense attorneys finally succeeded in getting DNA tests done that were not available in 1992. All we knew in 1992 was that the blood type of the DNA sample was consistent with Waller's. In 2008, we finally learned that the DNA did not match Waller, but instead matched Byron Bell, who was then serving a 45-year sentence for a burglary that occurred months after the abduction in Waller's case. So it seems that Bell must have been one of the two perps. But that didn't clearly exonerate Waller as there were two kidnappers.

Someone from the DA's Conviction Integrity Unit finally interviewed Bell this spring. By now, the statute of limitations on the incident had expired so Bell faced no possibility of prosecution. So Bell freely confessed to his involvement in the crime. Then came the big question. "Who was your partner in crime?" To everyone's surprise, Bell said it was some guy named Mondo who he hadn't seen since the night of the crime. Sure enough, police tracked down a man named Lemondo Simmons, who also could not now be prosecuted for the crime. So Mondo also freely confessed his involvement in the crime.

What we know, then, is that 3 victims identified the wrong guy. Those victims had no incentive to pick the wrong guy. Surely they all wanted the men who attacked them to be found and put behind bars. What could give those victims greater peace than knowing that their attackers could not hurt them or anyone else? But well-meaning as they were, they were all wrong. How could that be?

That it could be doesn't surprise me all that much. A well-intentioned officer thought those two guys who ran from him might have something to do with the crime. That officer picked out Waller as one of the men who ran. Then well-intentioned officers put Waller's photo into a line-up and showed that line-up to the victims. That well-intentioned officer probably knew which photo was the suspect. Without even realizing, that officer probably provided subtle clues to the victims that helped lead the victims to picking out Waller. We know from studies that this happens, despite the officer's best intentions not to lead the eyewitness. That's why it's always best that the officer administering the line-up not know which photo is the official suspect. Perhaps Waller did closely resemble one of the actual perps.

Then, invariably, once the eyewitness has misidentified a suspect once, that identification becomes cemented in his or her mind. Memory is really fuzzy that way. When the eyewitness sees the defendant in court, s/he will have no hesitation about identifying the defendant as the perpetrator because s/he recognizes the defendant from that photograph. The eyewitness' brain knows it's seen the defendant's face before. So that is how 3 victims can all be absolutely sure in their testimony that the defendant was one of the attackers and be dead wrong at the same time.

What frustrates me is the way police and prosecutors continue to treat eyewitness testimony as if it is the greatest evidence. We know better. Case after case has shown how wrong we all were to rely so much on eyewitnesses. So stop fighting us so much on it. Stop opposing our use of experts to tell the jury about some of the pitfalls of stranger eyewitness identification. We know that a particular subset of cross-racial identifications are particularly suspect, so let us explore those problems in front of the jury. We know through research that the certainty an eyewitness expresses about an identification has absolutely no correlation to the accuracy of that identification. Let us change the standard jury instruction that tells juries they should consider the certainty of the witness. Why on earth would we instruct juries to consider a factor that we know is invalid? Stop stalling about instituting new policies in your jurisdiction about how photo and live line-ups should be conducted. We know through research that there are better ways to conduct those line-ups that produce more reliable results, so why aren't all police forces throughout the country using those procedures?

And for goodness sakes, stop using one-person show-ups! To avoid forever tainting your eyewitness, just wait. Don't bring your newly arrested, handcuffed suspect to the emotionally-charged scene of the crime where your victim or eyewitness is undoubtedly still feeling the shock of being victimized or seeing it happen to someone else. Just wait. It may seem easy just to bring the suspect by and see if the eyewitness confirms your suspicion, but you'll get a much more reliable result if you let it sit for a while and show the eyewitness several people, not just your suspect.

Finally, since we do know how frequently misidentifications have played a role in convicting the wrong guys, the next time you have a defendant requesting new DNA testing on old evidence, don't fight it just because 3 victims identified the guy. Look what happened when you used that excuse this time: the wrong guy spent an extra 7 years in prison and the right guys got off scot free. Everybody loses in that scenario. Well, except the actual bad guys.

Confession

Since my senior year of college, when I wrote about the constitutionality of the death penalty for my senior thesis, I have struggled with a conundrum. It's a struggle that. as a defense attorney and staunch opponent of capital punishment, I hate to admit to. While I desperately want the US Supreme Court to declare the death penalty unconstitutional, I am secretly not convinced that there is a principled, intellectually honest way to reach that blanket prohibition. I'm like a minister who secretly harbors some failure of faith.

I agree wholeheartedly with the result in Kennedy v. Louisiana. I think death is not a fitting punishment for the wide array of crimes that fits under the umbrella of "child rape." (Hardly surprising as I don't think death is a fitting punishment for mass murderers or serial killers.) I share the amici's policy concerns about possibly increasing the risk of death to child rape victims and possibly decreasing reporting of child sex abuse to protect family members from execution. I am well aware of the special concerns about the possibility of false accusations in the emotionally-charged arena of child sex crimes. And I have personally seen how those trials, perhaps because of the intense emotions involved, are more susceptible to error than trials on other charges. In my experience, we should be even more concerned about the possibility of executing an innocent person in this arena than in any murder case. I certainly recognize that of all the thousands of persons sitting on death row in this country, only two are there for child rape. And while many states have been considering death for child rape, only a handful have actually passed it. And only one has actually imposed the sentence on anyone. But I'm still not completely convinced that the majority didn't just create a path to reach the result it wanted.

I rant and rave when court's reach what I feel are result-oriented decisions against my clients. It angers me no end to read legitimate issues being blown-off in such a way that it becomes clear the court is ignoring it because they are convinced the defendant is guilty. And I don't like to be inconsistent. If I dislike result-oriented decisions, I have to dislike them even when the decision is in my favor. But I really want to be free to embrace the Kennedy decision.

While I believe the decision today is morally correct, I desperately need someone to convince me it is legally correct, as well. Anyone?

ADDED: I think it's significant to note how many justices have begun their careers favoring the death penalty but changed their views over time. Most famous for this, of course, is Justice Blackmun. I remember the thrill I had the day I read his opinion in which he declared that he would no longer "tinker with the machinery of death." I agree with his central point, that despite all that we try and all the procedures we come up with, we cannot ever remove human fallibility from the process. There will always be some level of arbitrariness and unequal application. Reasonable people can disagree about which murders are the truly heinous ones. There may always be some level of discrimination involved in the death penalty because it will always be easier to impose death on someone prosecutors and juries don't feel a close connection to, someone who is different from them. (The statistical evidence certainly supports the notion that minority killers of white victims are disproportionately charged capitally.)

I completely agree with those justices who have concluded we can never make the system fair. I think anyone who has any significant experience working in or near capital cases has to see that. But how exactly do we translate that fundamental unfairness into a persuasive argument that the death penalty is therefore unconstitutional? Due process? Equal protection?

We all know that bad facts make bad law. We accept that maxim. But sometimes when I'm actually faced with it, I have to shake my head at how blatantly prosecutors and juries will disregard the actual law to get a result they want.

Like the myspace hoax case. Everyone thinks a grown woman creating a myspace profile for a teen boy so she can mess with a 13 year-old girl is bad. No argument here that the woman is a big, dumb bully for pulling that crap. But we shouldn't bend and twist and mutilate the law to find a crime to fit her bad behavior. If her behavior doesn't fit the elements of a criminal statute, it isn't a crime.

I've got a case right now where the prosecution has decided that my guy is a bad, bad man. They want to nail him for as many charges as they can possibly wring out of a 2 minute incident. They came up with 7. Pretty impressive, really. (And utterly unnecessary, too, because our state has an absolute cap on the possible sentence that could be reached with only 4 or 5 of those charges.)

But two of the charges are completely bogus. Even if you accept that things went down exactly as the alleged victim says they did, those two charges just don't fit. But when I point this out to the state, they just stick their fingers in their ears and yell "La La La La La La La" until I go away. They simply say, he did this thing. But what they say he did isn't actually a crime. At least, it's not the crimes they charged him with. In fact, I think the way they charged these two crimes is bizarre and both legally and factually impossible.

No one wants to face that basic truth. My brilliant, well-researched, excellently-written brief breaking the charges down into 3 separate issues went utterly unresponded to. (Beyond a "he did it so why is he complaining that the actual way we charged it doesn't really cover what he did.") The court doesn't want to hear me argue my issue.

But here's the thing, state. The other charges (5 of them) are pretty serious. Three of them are major felonies. As long as a jury believes the alleged victim (which, let's be honest, you fully expect they will), my guy will get prison time. And not a small amount of it. He'll have to do post-release, register, he won't get to own a gun. All that good stuff. So you really can let these two charges that just don't fit the facts go. Really. You don't have to make bad law here so please don't try.

I know as a true baseball fan, I am supposed to think the best games are the well-played ones: pitcher's duels with sparkling defense. But I have to confess that for me, the most fun games to go to are the really ugly ones. The down by 7, starting pitcher out by the 2nd inning, massive rally ones. The ones where you get down by 6 early, then cut the deficit to 3, only to give up 4 more the very next inning. Big rallies where you tie the game in the 6th, after much of the crowd has given up the game for lost, are just more fun. Then finally taking the lead in the 7th is fun, too. Especially when you know that your team has the ultimate weapon waiting in the bullpen, the most unhittable closer in the American League. The Mexecutioner. The Mexican Rembrandt? The jury is still out on what Joakim Soria's nickname should be. For now, we just have to be satisfied with calling him the best.

This is the second time I have personally witnessed the Royals come back from a 7 run deficit in the later innings. And there was the spectacular opening day of 2004 with the huge 9th inning rally with the game-tying Mendy Lopez homer. Watching my team snatch victory from the jaws of defeat is definitely the most fun I can have at the K.

My mother taught me a lot of lessons throughout my life, but one that has always stood out for me as the key to how I should strive to live my life is this: Be the better person.

When Mom was in high school, she earned some academic honor that her best friend did not. The bf, so upset that she did not earn the honor, did not congratulate Mom. BF simply never mentioned it. Naturally, Mom's feelings were hurt.

About two years later, when the two were both at the same university, both were again vying for an academic honor. This time, BF earned the honor while Mom fell short. Mom, like BF before, was upset that she had not succeeded herself. In her frustration at not making the grade, her first instinct was to think, "BF didn't congratulate me two years ago, so I'm not going to congratulate her now." But then her second instinct kicked in. She remembered how hurt she had been by her best friend's behavior before. Though the two were not as close as they had been in high school, Mom realized that she did not want to treat her friend the way she had been treated. She decided she would be the better person and so went to the ceremony where BF's honor was awarded.

Ever since my mother told me this story, I have tried to be the better person. I often fall far short. I can often be petty, small, and mean-spirited. But if I give in to those first instincts of lashing out in my own negative feelings, I generally try to make some kind of amends when that second instinct kicks in. Whatever I do in life, I try always to ask myself if I'm acting the best way I can. On a daily basis, the issue isn't that I am better than those around me. It means that I am being the best version of myself that I can be. When I am in the type of position my mom was, where someone else has done something hurtful to me, I still try not to respond in kind. Not so I can feel morally superior to the other person, but because even if that person has hurt me in some way, I still don't want to hurt him or her.

I think this is what most bothers me about the way people in the general public often talk about criminal defendants. People always say that defendant should have whatever he did done back to him. They write ugly comments on message boards, explaining in nasty detail all of the heinous things they would do to the child rapist or murderer. They say, "He didn't respect his victim's life, so why should we respect his?" Why should we treat him better than he treated his victim?

To all of them, I say, we should treat him better than he treated his victim because we should be the better people. We as a society don't like the way that individual treated his victim. It was wrong, often brutal, sometimes heinous. We don't want to tolerate that behavior because we don't want people in our society to be treated that way. So let's show those who violate our code just how much we respect life and just how much we don't want to tolerate that kind of treatment by treating the defendant better than he treated his victim.

We generally don't want to be rapists or murders, so why allow ourselves to be brought down to that level? Instead of responding in kind to the bad guys, let's be the better people. Don't respond to the bad guy the way he treated his victim. Don't give in to the baser instinct of inflicting pain for pain. Respond to the bad guy the way you would hope to be treated. Be the better person.