Saturday, February 28, 2009

Not in my garage

I'd like to think that I really wouldn't object to a homeless shelter in my neighborhood. But I'm not quite willing to open one in my own back yard.

My garage has never been a well-secured building. For a variety of reasons, I don't park in it. It's looking its years and is due for lots of maintenance that I just haven't gotten around to. One of its major failings is the pedestrian door. It doesn't latch and the deadbolt lock has never worked since I've lived here. Also, the door has a missing panel that allows easy access to the neighborhood opossum.

I never worried about random strangers going into my garage because you have to be on my patio, right by my kitchen and bathroom windows to see the garage door. Until Tuesday. When I checked my mail on Tuesday, I found a weathered old business card in the box. On the back, in shaky print, was the following:

Will you rent me garage. I'll take care of yard for free. Luther.

The message included an incomplete phone number.

Having no way to contact Luther, I was not able to tell him that no, I would not rent him my garage.

Luther, though, took my silence as affirmation. On Thursday, as I sat on my couch watching 30 Rock, I caught a glimpse of movement out my kitchen window. As I turned to look, the motion detector light came on, revealing the man who was walking out of my garage, across my patio, and out to the alley. I think the sound I made can only be described as a scream. I watched, a little stunned, as the man (presumably Luther) walked out of sight down the alley. Then I ran out the back door, with SO close behind.

Even before I turned on the light in the garage, I knew what I would see. Luther had laid out a bedroll on my garage floor, complete with one of the pillows from my patio set. The homeless stench was noticeable even from a distance. SO gamely moved Luther's worldly possessions, which also included a package of ramen and a set of Tarot cards, out of the garage and onto the driveway while I broke out the WD40 in a futile attempt to make the lock work. Fortunately, it was only 8:45, so we still had time to drive to the hardware store and buy a replacement dead bolt, which SO had installed on the door about 5 minutes after we got home.

When SO went out to the garage to install the new lock, he saw an apparently homeless man on the driveway, looking at the displaced bedding. The man denied being the attempted renter and walked away. Assuming he would eventually return to claim his possessions, we found a couple of canned food items to add to his stash. We also tied a few dollars to one of the cans. As of now, over two days later, Luther's things are still on my driveway.

I don't feel guilty at all about not allowing Luther a sheltered, slightly-warmer place to sleep. This is my house, my property, my private sanctuary. I don't let people in. I don't want friends roaming in and out at their pleasure, so I certainly can't handle a stranger, especially one with possible mental health issues (SO thinks the man he met was not all there), invading my privacy. But I will feel terrible if he feels like he can't come back to get his things. The last few nights have been cold and we had snow last night. I hate to think that Luther has been without his sleeping bag these last few nights because he doesn't want to upset me or he doesn't want me to call the police on him.

Ok, so we knew about Bill Self...

but now it appears that he is not the only brilliant sports mind in the region. While no one was looking, Dayton Moore has quietly put together the wickedest bullpen in baseball. Watch out, folks, 'cause the Royals are contenders this year. And today we have confirmation that Scott Pioli is quite the negotiator. I'm not quite sure what he has on Bill Belichick, but he must have some blackmail material. Or else he's just that persuasive to score a starting QB and a starting LB, a defensive captain and leader, for one measly second round draft pick. That's got to be a felony.

Maybe I'm just naive and hopelessly optimistic, but I'm feeling pretty good about the Royals and the Chiefs these days.

And, just in case you hadn't noticed, the defending national champion Kansas Jayhawks are once again in first place in the Big 12, in the driver's seat for their 5th consecutive Big 12 title. This even though they lost all 5 starters from that championship team. Which is why I will say again that Bill Self is the best coach in college basketball.

Friday, February 27, 2009

In an interesting contrast to the Tim Masters case, Here is the story of a California man who was awarded $1.3 million in damages by a civil jury. This man, though, was never wrongly convicted of any crime. He was only wrongly charged with murder, a charge that kept him in jail for 8 months. He was able to sue the police because from the day he was arrested, he provided an alibi, complete with cell phone records that verified he was at work at a home some distance from the crime scene when the murder happened. Somehow, though, the police took 8 months to recognize the air-tightness of the alibi.

I've written before about what a profound impact even a few days in jail can have on someone who is wrongly charged, so I have no complaint with a verdict in favor of this man. A person can lose a job just by having to wait 4 days before being able to make bail. I can only imagine the devestating effects 8 months in jail on a wrongful murder charge can have: lost job, lost home or apartment, lost car due to missed payments. One's credit could take a tremendous hit from all the missed electric, cable, and phone bills if the wrongfully incarcerated didn't have a dutiful friend or family member who could take on those responsibilities.

So I say bravo to this successful plaintiff in California. Perhaps if juries start awarding money to some of these people, police will work a little faster to charge the right guy, not just the first guy they investigate.

Thursday, February 26, 2009

Life after exoneration isn't easy. The side effect that most states don't really deal with after releasing those wrongfully convicted of hideous crimes is that the lives of those individuals can't ever be restored to what they should have been. Everyone in Colorado ought to know that Tim Masters is not a murderer, but a year after finally being released, he still can't get a job.

As Mr. Masters talks about in the interview, he does not have the life he feels he should have by this stage. He's a 37 year-old man with no wife, no kids, and no employment. The charges may have been dismissed, but anyone running a background check on him is still going to see the murder charge existed once upon a time. I would hope that the word has gotten around that state that the conviction and resulting 10 years in prison were undeserved and that Mr. Masters did nothing more than draw some scary sketches when he was 15. But employers in Colorado still aren't quite willing to take him on. Of course, there's also the minor detail of those 10 lost years when he wasn't able to build any work skills or blaze any career paths.

Sadly, the state that spent hundreds of thousands of dollars to convict and incarcerate Tim Masters doesn't appear to be spending any money to help him recover some semblance of a life after that wrongful incarceration. He's doing better than a lot of exonerees. He may be struggling, but he has been able to make an income for himself. Many others have fewer options than Mr. Masters has.

States need to be doing much, much more to help the Tim Masters of the world integrate back into the real world. There has to be more Colorado can do than put an asterisk next to that murder charge in their conviction database. Give him a little cash, get him some job skills, and pound the pavement with him to convince every potential employer that Tim Masters is no murderer and would pose no threat to any of that employer's other employees. The state stole the best years of his life (perhaps not maliciously, but that hardly matters now), so the least it can do is provide him a path to a good life now.

Monday, February 23, 2009

Bill Self is the best coach in college basketball. In case you hadn't noticed.

Thursday, February 19, 2009

That 9 year-old Arizona boy pled guilty today to one count of negligent homicide. Link

He won't serve any time in the state juvenile correctional facility or an adult prison ever. He will be on intensive probation. He might live in an institutional setting or he might live with relatives. He will receive mental health evaluations at ages 12, 15, and 17.

It's certainly better than a first-degree murder conviction or two. It's better than the state's threat to hold onto the more serious charges until the boy was older, when they would try to pursue murder charges in adult court. And goodness knows the boy is going to need some serious therapy after everything he's been through.

This just doesn't feel right. I realize I don't know all the information contained in police reports. I don't know all the behind-the-scenes machinations that went on. But my gut just tells me this isn't the right result here. The boy's mother did not agree to this plea. She steadfastly maintains that her son did not shoot these two men. His attorney hasn't exactly disagreed with her claim.

I have seen snippets of that alleged confession. From what I have seen, I do not trust it. I worry that overzealous police planted the idea in this kid's head. The kid, traumatized by the murder of his father, would have been fuzzy on what had happened and would probably have been highly suggestible. Memory is such a tricky thing that by the time they got him around to saying he'd shot the two men, it would no longer matter whether that was the truth or not. That boy would believe his false confession. I cannot shake the feeling that this is roughly what happened in this boy's case.

Maybe I'm just too optimistic about the innocence of 8 year-olds. But I just can't convince myself that justice was achieved here.
The Phelps family has been barred from entering the UK.

U.K. bars entry to anti-gay American preacher

An anti-gay U.S. Christian preacher and his daughter have been barred from entering Britain as they could spread "extremism and hatred," the British government said Thursday.

Lucky U.K.!

The hits keep on coming for the nation's forensic scientists

I wrote just yesterday that those of you interested in issues relating to wrongful convictions and the integrity of the criminal justice system should read Radley Balko at Reason. Start with this. (Don't watch the video if you don't want to see a dead child.) This particular article is the story of Jimmie Duncan, a young man who has been on death row since 1998 for an accidental bathtub drowning. Two "forensic scientists", Steven Hayne and Michael West, who have both been totally discredited (West has been kicked out of the American Academy of Forensic Scientists while Hayne has finally been kicked out as the unofficial medical examiner of Mississippi) manufactured evidence not just to create a murder case, but to make it a capital murder case.

There's actually video of the discredited "bite mark" expert, West, creating a big, nasty bite mark on this little girl's cheek. The video and hospital photos clearly show that her cheek is pristine before the autopsy. Then the "expert" repeatedly presses a dental mold of the defendant's mouth onto the girl's cheek. Presto! Big, bad bite mark to support the experts' claim that Duncan intentionally killed the girl.

Every forensic expert who has reviewed the video is appalled by what is shown. It seems clear to all credible scientists that Jimmie Duncan did not do anything to this girl's face. If the experts made this up, who knows what else they made up in their quest to make this death a murder rather than the tragic accidental drowning it was. The medical examiner, Hayne, also claimed the little girl was raped. From earlier stories by Balko, I have gleaned that no reputable forensic scientists agree with that assessment, either.

Inexplicably, Duncan's trial attorneys had this video and the photos before Duncan's trial, but the jury never saw it. Nor did Duncan's forensic expert, who would undoubtedly have provided scathing testimony had he seen the before pictures or the video. Equally inexplicable, the trial judge ruled that there was nothing exculpatory on the video.

There is so much to this case that I can't understand. I can't understand why two men who claim to be scientists would want to manufacture a murder where none occurred. I can't understand how a prosecutor could watch that video and not question the correctness of his experts' actions. I can't understand how a judge could find that video does not contain exculpatory information. More than anything, I can't understand how Duncan's defense attorneys didn't plaster that before picture of the dead girl all over the courtroom. How were they zealously advocating for their client by not letting the jury see evidence that the state's experts had manufactured the main evidence against the defendant? Are none of these people the least bit concerned about sending a man to death row for a rape and murder that DID NOT HAPPEN?

While I can't fathom how on earth poor Jimmie Duncan got to the place he is right now, I can without hesitation express some strong opinions about what the rest of us need to do to fix this travesty. First, obviously, Duncan's conviction and sentenced need to be overturned. No procedural bar should be raised to prevent a court granting Duncan relief. I don't care if his attorneys did claim a "strategic" reason for declining to use the video and photos in court. Substance should absolutely control over procedure in this case. We have video tape of a forensic hack manufacturing the state's main evidence against Duncan. Would anyone seriously argue that a rule of procedural default should be invoked to keep Duncan's execution on schedule?

The prosecutors and defense attorneys involved in Duncan's trial should all be disbarred. We just can't have this level of incompetence in courtrooms. There is no reason for any of them to conclude that the video and photos weren't critical evidence that a jury had to see before rendering a verdict. The judge, too.

And Hayne and West should be prosecuted. Evidence tampering. Obstruction of justice. Or my personal choice: attempted murder. You know that's what Jack McCoy would charge them with. They made this crap up and put a man on death row in the process. Tell me how they didn't intend to kill Jimmie Duncan. I wonder how many other men are languishing in prison for life or on death row based on the lies of these two hacks.

Wednesday, February 18, 2009

The National Academy of Sciences has now published its report of its 2-year study of the nation's crime labs. As predicted in the February 5 preview of the report, the academy concluded that our nation's crime labs need a major overhaul. From the CNN story:

In its report published Wednesday, the academy showed there is a serious lack of uniform standards, training and oversight. And, with the exception of DNA technology, the report concludes experts often overstate how much can be determined by forensic techniques running the gamut from fingerprinting to bite mark and hair analysis.

The report notes that, with the exception of DNA, "no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source." (Caveat: DNA does not always mean guilt, either.)

One major concern to me is the way forensic experts overstate their cases. They use bad science to get marginal results, but then sell them to the jury as if those results are irrefutable proof of guilt. Evidence that the general public has come to believe are indisputably unreliable, like fingerprints and firearms testing, are actually questionable at best. There are no national standards about what is required to declare a match in either of these areas. In firearms testing (to determine whether the bullet in a case came from a specific gun), the Academy questions whether those testing methods are reliable or even repeatable. In the scientific world, a test that isn't repeatable isn't worth anything.

I am convinced that one of the major problems with our nation's crime labs is bias. Our nation's forensic labs have allowed themselves to become driven by a desire to catch the bad guys, sacrificing science along the way. They aren't independent labs searching for the scientifically supportable answers. Instead, they are run by the police, the state bureau of investigation, of even the prosecutor's offices. Even those that are technically independent are subject to threats if they don't follow the prosecution line. (See this story out of Minnesota.) Science labs that put science second to anything should not be allowed to help put my clients behind bars.

The Academy has recommended some good ideas for improving the state of our nation's crime labs. They recommend that Congress create a national institute to formulate standards and regulate training and accreditation. I would hope this institute would also involve some form of certification. Lawyers can't just get training; they have to pass a bar exam before they can appear in court. I would like to see all forensic "experts" have to be similarly certified by passing a standardized test. The Academy also recommends that crime labs be removed from control by police departments and/or prosecutor's offices. Meaning situations like the one in Minnesota, where a county attorney's office questioned the local medical examiner's willingness to work with a defense team to the point of threatening to withdraw any future support for the medical examiner, would be prevented. I believe the Academy's point is that the scientific experts should be free to follow the science to whatever result is right, instead of being expected to find only results that are beneficial to the prosecution.

The Academy's report contains the conclusions I reached on my own through years of criminal defense work. All of the scientific experts who testify in my cases are employed by the KBI or the local police department or might as well be. I hope the Academy's concerns will be taken seriously and I hope their recommendations will be implemented quickly. This mess has been allowed to be the norm for way too long.

Missouri, congrats on rejecting this guy for Governor!

Kenny Hulshof lost the 2008 gubernatorial race to Jay Nixon. Now, as a loyal Kansan, I'm no fan of Missouri, but I'm a big enough person to give credit where credit is due. And. as we're learning today, my not-so-favorite state to the east made the right choice in that November election. From today's Kansas City Star comes this headline:

Missouri man convicted of ’92 murder to be released from prison today Link

Joshua Kezer is being released today after a Cole County judge overturned the conviction in a habeas proceeding. The judge issued a 44-page ruling that has been described as scathing towards Hulshof's actions leading up to the conviction. (I have not had a chance to read the ruling for myself yet.) Not surprisingly to a defense attorney, one of the major issues in the habeas case was Hulshof's withholding of key pieces of evidence from Kezer's defense team.

The case entirely rested on an eyewitness who placed Kezer near the victim's car (that witness has since recanted) and two jailhouse informants who claim Kezer confessed to them. My regular readers should probably know what I think about that evidence. For the uninitiated, I think jailhouse informant testimony is worth less than my IRA. There wasn't any other evidence against Kezer.

But the man who wanted to be Governor of Missouri remains convinced that Kezer is the killer. And as support for that position, he reminded all that Kezer was a member of a violent gang. Well, then, he must be guilty, right? Hulshof also seems to think he didn't do anything wrong in prosecuting the case. So this case is bad enough with Hulshof doggedly clinging to that jury verdict and refusing to acknowledge Kezer received anything less than a completely fair trial.

Then, I found this piece by Radley Balko. (Aside: if you're interested in issues of wrongful convictions and the integrity of our criminal justice system, make Balko a part of your regular reading schedule. I don't know of anyone else who does the level of investigation and reporting on these issues that Balko does.)

Prosecutorial errors by Hulshof have led to reversals of death sentences in at least 4 cases. So the seemingly illustrious legal career of Kenny Hulshof is now being exposed as a fraud. Any prosecutor can get a conviction by breaking the rules, as long as he doesn't get caught. He rode these convictions to a political career in Missouri. He was a 6-term Congressman for Missouri. He received his party's nomination for governor. But once all those broken rules come to light, many of Hulshof's high-profile wins have fallen apart.

It would have been hugely embarrassing for Missouri if Hulshof was now the governor of the state as the sheer volume of Hulshof's past prosecutorial misconduct is coming to light. Who knows, maybe the judge in Joshua Kezer's case wouldn't have felt as free to write the ruling he did if Hulshof were now the governor. If there are any other Hulshof convictions out there pending before courts on prosecutorial misconduct claims, those, too, might get a better review since Hulshof is not governor. It's far trickier to write opinions critical of the sitting governor because people will cry foul, complaining that the judges made their decision for political reasons. So for the sake of any other defendants who were convicted by Hulshof, I'm glad their cases won't be complicated by involving the current governor.

And, hey, Missouri should just be proud that they rejected the guy who doesn't think the rules apply to him.

The Law According to Oscar

Who knew so much legal wrangling went into the awarding of a simple Oscar? The Academy this year is particularly concerned about the possibility of Heath Ledger winning the award posthumously. In case that happens, the Academy needs to decide who actually gets the statue. Here's the full story.

It seems that a few lawyers have had to put quite a lot of time and research into figuring out who should be awarded physical custody of Ledger's statuette. Ordinarily, the spouse or oldest child would get the posthumous award. But Ledger wasn't married and his only child is 3. So the kid gets it. But the custodian of the award has to sign the contract agreeing not to sell the award. The Academy wants to prevent the creation of a black market where Oscar statuettes are sold for hundreds of thousands, potentially even millions, of dollars. So all Oscar recipients have to sign an agreement that they won't sell the award without first offering it to the Academy for $1. Obviously, Matilda at age 3 can't sign that contract. The thing I hadn't ever thought about before is that Matilda's mother can't sign the contract and thereby bind Matilda for life.

I find these odd, quirky little legal conundrums fascinating. I love that the Academy officials who just want to make sure the right people in Ledger's life get the award if he wins it have to take nuances of contract law into consideration. I think the fact that I enjoyed this article is probably strong evidence that I am a major law geek.

Tuesday, February 17, 2009

For the first time in over two months, I went running on Sunday. I only went about a mile, but it felt so good. Why have I let myself get so far away from running? I don't think I get to call myself a runner right now, which is disappointing. I really enjoyed feeling like a part of that fraternity, running down a sidewalk and passing one of my fellow runners. But I've let myself go. It's probably not just a coincidence that I've been in a pretty serious funk for a while. Since I know that running makes me feel better both physically and mentally, I should really do it more often.

And you're probably tired of reading about my dog, but she almost died on Sunday. She took too much food into her mouth and it lodged in her throat. She was definitely choking. It was one of the worst things I've ever seen. She fell over and was flopping around on her side. I'm not sure if she was convulsing, panicking, or if she was somehow instinctively trying to smack herself hard enough to free the obstruction. SO, normally hard to ruffle, was freaking out. He smacked her hard on her back. I did the best modified Heimlich maneuver I could think of. Somehow, something one of the three of us did worked. I never saw anything fly out, so I guess she finally was able to swallow the food. She was instantly just fine. About a minute later, she was sniffing around, hoping to find another bit of that food that almost killed her. Silly, oblivious dog. I was not fine. I was shaky the whole rest of the evening.

Then we had the whole threat about withholding our paychecks.

I've been a big ball of stress. Running more would definitely help with that.

Monday, February 16, 2009


The giant, intricate, all-consuming knitting project that has occupied almost every moment of my free time for the last 2 months is done! Well, I haven't blocked it and I have to weave in my ends, but it's off the needles. Every stitch is stiched. 147 stitches per row, 252 rows. This project required 6 skeins of yarn to be involved for the majority of the project. My fingers are cramped from the final push I just did to get it all done tonight.

This large project had gotten to a point where I could barely fit it all into my knitting bag, which seemed quite spacious when I bought it. But now, the bag feels light even though I've already put 3 little projects into it.

I do not resent any of the work that went into it, though, because I know the dear friend for whom I made it will appreciate all of the love and labor in the gift. I'm really quite proud of myself. This was a crazily ambitious project for a pretty novice knitter to take on, but it came out looking pretty damn good if I do say so myself. I'll post a picture, but I have to wait until my friend receives it. She should get to see it first.

Dear Kansas Legislature,

Please pay me on Friday. I have been a good and dependable employee for many years. I come to work, I do my job, and I don't abuse my sick leave. So why are you threatening not to pay me?

I don't really care about your squabble with the Governor. I get that you want her to sign your budget reduction bill, but why should my paycheck hang in the balance? I do not appreciate your withholding my paycheck and using it as some form of extortion against the Governor. Whether she signs or vetoes your bill, you still owe me my money. It just doesn't seem like refusing to pay 42,000 state employees is much of a way to get people on your side.

I'm a fairly responsible person. I don't live paycheck to paycheck. I have a savings account, an IRA in addition to my state retirement account, and a deferred compensation account. I can survive if I don't get paid this Friday. I can probably even make it if I miss the paycheck after that. After that, it will get hairy. I do not deserve for things to get hairy. I have done my job; I deserve to get paid.

You have the money, you just have to move it from one account to the other. You claim you won't unless the Governor signs your stupid bill. You are being big, mean bullies. I don't care whether your bill passes or not, I want the money you owe me.

Stop playing chicken with my life. Pay your damn employees.

Thank you.

Wednesday, February 11, 2009

According to at least one prosecutor's interpretation of the law, HIV+ people in Kansas can't have sex. No matter how consensual. No matter what precautions are taken. No matter how willing and informed the non-infected sex partner is.

Like many (most?) states, Kansas now has a law prohibiting the transmission of infectious diseases. The law was a response to horror stories of people infected with HIV having unprotected sex with lots of pretty, young women with the goal of spreading the virus to as many people as possible. Sure, that's bad behavior by those few, isolated individuals. (Although, come on ladies, protect yourselves. Don't let the guy get away with saying he doesn't want to use a condom. Didn't you take sex ed or watch any after school specials? In the words of one classic special, no balloon, no party!)

But I don't think the law was intended to criminalize any and all HIV+ individuals having sex. This article includes the statement that it is a felony for a person who knows he carries the virus to engage in sexual activity. As far as I can tell, that is the prosecution theory: that the defendant engaged in sexual activity knowing he could transmit the virus (no matter how remote the likelihood of transmission). It has to be because the "victim" has said he was fully aware of the defendant's status and that they did not engage in certain acts so as to minimize the risk of transmission. Where on earth is the crime? The statute requires that the defendant engage in the sexual activity with the intent to expose the other individual to the life threatening communicable disease. The state in this case seems to think that intent is satisfied simply by an HIV+ person having sex with an uninfected partner.

Is this a crime because the 18 year-old "victim's" mother didn't like the fact that her son was having sex with a man? I have to believe that would be about the only way the police would hear about completely consensual sex between two adults. I would guess an awful lot of HIV+ Kansans are having sex without facing prosecution because there isn't some disapproving buttinsky calling the cops. Which is pretty much exactly how it should be. Because even HIV+ people have a pretty basic right to privacy in their consensual sexual encounters. Really. Read Lawrence v. Texas and tell me how I'm wrong.

So is this a twisted application of the law just because they don't like this particular defendant and his tendency to have gay sex with younger guys? (Bad fact alert: this defendant does have a 2001 conviction for criminal sodomy involving an 11 year-old boy. But the fact of his prior conviction is totally irrelevant here and doesn't render this completely legal, consensual encounter anything criminal.) Or is this prosecutor just stuck in 1988 modes of thinking about AIDS? Because back then, we all thought there was no safe sex with an infected person. But in 2009, we all ought to know better. And for crying out loud, a prosecutor who intends to pursue a felony conviction has an obligation to learn the realities of HIV/AIDS today. It's quite possible for people to have sex without infecting a partner. It's certainly not criminal.

UPDATE: I hadn't seen this last night, but the jury has already acquitted this guy.

Nuremberg, PA

How's this for a headline:

Pa. judges accused of jailing kids for cash
Judges allegedly took $2.6 million in payoffs to put juveniles in lockups

Here's the full story. The two judges were charged on January 26 and are expected to plead guilty to fraud on Thursday. In Pennsylvania, many juvenile detention facilities are privately-run. These two judges are alleged to have taken approximately $2.6 million in kickbacks from those private facilities between 2003 and 2006. The plea agreements call for the two men unworthy of the robe to spend more than seven years behind bars. And not a day less, I hope. They should each spend a few days for each child who was unnecessarily incarcerated by them.

What appalling behavior from these judges. Read the whole article to learn some of the more disgusting details. Many of these kids were sentenced to detention over the objection of probation officers. One of the judges incarcerated juveniles at a rate more than double the rate for the rest of the state. Where were these juveniles' attorneys you ask? Well, many of them did not have attorneys, nor were they even advised of their right to attorneys. And, yes, juveniles have a constitutional right to attorneys.

The most striking quote from the article is this:

The explanation, prosecutors say, was corruption on the bench.

Well, yes, obviously. That is definitely the major contributing factor to this outrage affecting hundreds, even thousands, of illegally incarcerated juveniles. But the judges weren't the only ones in the courtroom. This didn't happen without an audience. There may not have been defense attorneys in many of these cases, but there were prosecutors. There were court employees, court reporters, and there were probably some defense attorneys who could have seen some of the unrepresented kids appearing in court. This fraud went on for at least three years, possibly longer. In all that time, the county prosecutor's office never once questioned why so many juvenile defendants in that county were sent to detention by these two judges. Without the assistance of counsel?

The attorneys and other court personnel who stood by and watched this happen do not get a free pass in my book. Yes, they were powerless to alter the sentences meted out by these two judges, but that did not leave them with no responsibilities. These juveniles had a constitutional right to the assistance of counsel. Constitutional rights must be knowingly and voluntarily waived. An appellate court will not presume such a waiver on a silent record. So here in Kansas, for example, the defendant must personally waive his/her right to a jury trial on the record. Otherwise, a defendant convicted at a bench trial has an automatic reversal on appeal. The same should apply to a defendant who is convicted without counsel. So why weren't any of these prosecutors asking the court to make a clear record that these kids were voluntarily waiving their right to counsel? Did any of the defense attorneys who did represent one juvenile defendant step up and volunteer to also speak with that kid who didn't have an attorney?

I don't blame anyone for not cluing into the fact that judges were taking kickbacks for sending juvies to these private detention facilities. But I will hold people other than the judges partially responsible for denying these kids their basic rights. I don't care that it's the judge's courtroom or that the buck for everything that occurs in that courtroom stops with the judge. Prosecutors can't just stand by, watch judges run roughshod over the rights of defendants, and then "tsk, tsk" along with the rest of us when we find out about it after the fact. They, also, bear responsibility for protecting the rights of the defendants they charge.

It's an excellent result that these two judges will spend 7 years in prison in exchange for the young lives they imprisoned for their own financial gain. And I certainly do not think anyone else in the court system bears any criminal responsibility whatsoever. (The folks from the private facilities who forked over the cash, obviously, do.) But the court system in this Pennsylvania county really needs to take a good look at itself. I hope they don't just collectively say, "we got the bad judges, so we're good now." Instead, I hope everyone else will learn that they each need to be just a little more willing and ready to ask questions, compare notes, and speak up when they see something that just doesn't smell right.

Tuesday, February 10, 2009

In keeping with the intellectual tone I strive to achieve on this blog, I thought my readers would find this story sufficiently edifying.

My personal favorite muppet is Rowlf because who doesn't love a blues-singin', piano-playin' dog. And he reminds me of my own sweet, shaggy dog, who I call my muppet. I love that he was a television sidekick. Seems entirely appropriate for him.

Having been raised by an Iowa gal, I can totally see Miss Piggy coming from that fine state.

I am glad they dropped the name Snarl for Gonzo. Whatever he is, he is definitely more Gonzo than Snarl. Likewise, Grover is a better name than Gleep. The overarching lesson here seems to be that the Muppet powers that be should never stop with the first name they think of.

And I did not know that Waldorf had a wife named Astoria. I'm fairly confident Statler would respond by sarcastically expressing surprise that Waldorf had a wife at all.
A broken dog whose pain meds have worn off is a sad, sad sight. She is not herself at all right now. The vet gave her a 12 hour pain med around noon yesterday, but it was clearly wearing off by the time we went to bed around 11. Giving her one then would have meant she would not have any pain med in her for most of her day today, so I waited until this morning. Now waiting for it to kick in this morning is hard. She's not trying to play. She's not trying to jump on me. She's just lying next to me, looking as pathetic and woeful as I've ever seen her.

Leaving to go to work today is going to be very hard.

Of course, while I'm at work, she'll just lie here on the couch and sleep. But I'll be completely unable to focus, worrying the whole time I'm gone.

I know. She's a dog. She's fine.

Monday, February 9, 2009

Oh, was I not supposed to say anything?

“It is not possible this was leaked without there being a violation of the law.” So says someone familiar with the Barry Bonds case about the release of information that Alex Rodriguez was one of the 104 players who tested positive for steroids in 2003. The government was not supposed to be able to link any of those test results with actual player names. But they did. And someone who did obviously didn't feel any need to keep that information to him or herself. According to this article, people who know the judge and are familiar with the case expect that there will be contempt hearings on this leak. I certainly hope so.

This leaking of sensitive or prejudicial information is something I have complained about before. Under most state's ethical rules, it's supposed to be a violation for the prosecutor to allow the public to learn about the existence of a confession. Prosecutors are supposed to be held accountable for the actions of the police and investigators who work on the case. I complained about this in the case of the 8 year-old murder defendant in Arizona. I complain about it because, despite this rule, I am unfamiliar with any prosecutor ever being publicly criticized for these leaks, let alone investigated for an ethical violation.

Here is a disciplinary case from Kansas in which a prosecutor was disciplined for inappropriate release and sharing of information obtained in a criminal investigation. The case involved rape allegations made by a young teenage girl. While the prosecutor declined to prosecute the rape allegation, he did think the parents of the teenagers who were at the party where the incident occurred should be made aware of what their kids were doing. So he publicly offered to show photos from the party, some of which were quite explicit, to any parents who came to his office. This prosecutor received a 6-month suspension for not having the sense to keep those photos private.

One of the violations this prosecutor was found to have committed was causing undue stress, humiliation, or embarrassment to a 3rd party. This would seem to apply to whoever leaked the information about A-Rod. The feds weren't supposed to know the identities of those players who tested positive. I can't think of any reason for anyone to release the information about A-Rod other than to embarrass him. Maybe it was a Red Sox fan.

Prosecutors need to be more careful with the information they receive through a criminal investigation. They get access to a lot of very inflammatory, very prejudicial stuff. They need to be mindful of what an awesome responsibility possessing that information is. They are not entitled to do whatever the hell they please with the information they obtain during a criminal investigation. I fear that message won't really sink in as long as prosecutors don't suffer any real consequences when they do leak things. The disciplinary action in the Kansas case was an encouraging step. Another good step would be for someone to pursue this leak about A-Rod and holds the person responsible accountable.
My poor, sweet pup. Yesterday, it was clear she was not feeling quite right. She was actually shaking, but being a dog and all, wasn't able to tell us what was wrong. She seemed just fine this morning, perky as usual. I was going to meet my carpool and head to work as normal. Until I accidentally bumped into her tail. The yelp, tail-tucking, and trembling let me know she was not just fine.

The vet's conclusion: somehow, the poor thing broke her tail. Her previous owners had her tail docked, so it's just a little nub. I have no idea what she did to it. We didn't bother with an x-ray to confirm the diagnosis because there's nothing they can do for her other than pain pills and time.

If anyone has any suggestions for how to keep a happy, tail-waggin' dog from wagging her tail (other than being mean to her), please let me know.

Thursday, February 5, 2009

Let's put the science back in the science labs

Today in the New York Times:

US February 05, 2009

Science Found Wanting in Nation's Crime Labs By SOLOMON MOORE Link

Forensic evidence is often the product of shoddy scientific practices that should be upgraded, a draft report found.

This isn't much of a shock to defenders. We've been aware of the bad science that has been convicting our clients, but we've not always gotten our message across in court. Complaints about rampant problems in state crime labs haven't yielded much change in the way those labs do business. And the results are almost never excluded from court.

A huge part of the problem is that the labs doing the forensic testing for criminal cases have become far too connected to law enforcement, sacrificing independence and scientific integrity. Too many folks who do the forensic testing for criminal prosecutions are more interested in being cops than scientists. They watch shows like "CSI" and "Crossing Jordan" and have visions of being the ones who nail the bad guy. But a good scientist can't care what the result of the test will be. Or overstate the significance of a test result.

A major problem is that agencies like the FBI or state counterparts often drive the "discovery" of new techniques, like blood splatter analysis or the now-debunked lead analysis that the FBI claimed could determine whether a spent bullet came from a particular batch of ammunition. The investigators trying to build a criminal case against a suspect have an agenda, so they probably shouldn't be creating the techniques that will be used to tie a suspect to a crime. Bias and science are not a good mix.

I hope this report does come out strongly in favor of overhauling the way forensics labs throughout the country do business. Changes are overdue. Science can play such a powerful tool in criminal prosecutions that we really ought to make sure we are using it well and justly. We need to make sure we convict people on science, not on faith.

Etta James rips Beyonce for singing 'At Last'

Music legend Etta James has put modern superstar Beyonce on blast for singing her signature song, "At Last," at the Neighborhood Inaugural Ball after Barack Obama's presidential inauguration.

Ok, so Etta would win a sing-off, but I'd have to go with Beyonce in hand-to-hand combat.

I wonder if Etta equally objects to non-celebrities singing "her" song? Because I have a friend who sings it beautifully. If Etta wants to throw-down with her, well she's gonna have to deal with me, too.

If we give you the right to confront witnesses, can we put you in jail when you lose?

My absolute biggest pet peeve: Prosecutors who claim some right of confrontation. The state does not have a confrontation right! Seriously, folks, read the Constitution once in a while. The 6th Amendment says defendants have the right to confront their accusers. How can anyone read that to apply equally to the state? It doesn't.

What drives me craziest is when the judge or even the defense attorney accepts the state's claim. Grr! The only response any prosecutor should ever get when s/he whines, "What about the state's confrontation right?" should be, "The state has no right to confrontation."

The criminal justice system in practice is stacked in the state's favor enough. We don't really need to make it more so by applying the Bill of Rights to the state.

Tuesday, February 3, 2009

LWOP: it's not just for adults!

From the New York Times today, we have this story about a cert petition currently pending before the US Supreme Court. The defendant, Joe Sullivan, was a boy of 13 when he was sentenced to life in prison without the possibility of parole for a rape conviction. His attorneys are now asking the court to consider whether that sentence for a juvenile constitutes cruel and unusual punishment.

If you've read my blog at all, you probably can guess that I think it is wrong to sentence a child to LWOP. My regular readers should know by now that I don't think any 13 year-old should ever be tried as an adult, so I certainly don't think they should be subjected to such unalterable punishments. A child who commits a horrible crime should be punished, yes, but not to the degree we would punish an adult. The end goal of punishment for a child should be rehabilitation. An LWOP sentence is as far removed from rehabilitation as you can get. No matter how much we pretend otherwise, a 13 year-old who commits rape is still a child. A child can mimic adult acts, but a child can't actually commit an adult act because no child has an adult's brain development, decision-making skills, and impulse control.

Because the 13 year-old child isn't close to done developing, I think it's abhorrent to treat that child as a hopeless cause, which is what we do when we sentence him to LWOP. I don't understand how anyone can so willingly say to a child, "You will never see the light of day again." How can someone who hasn't even reached high school not deserve even a chance to prove he's been rehabilitated? I refuse to be that pessimistic about my fellow humans, especially about kids who probably haven't had much good guidance through childhood if they're out committing crimes by the age of 13.

What is most striking to me about this case is how little is really required of the state before they're allowed to lock someone up and throw away the key forever. This boy's trial took one day. His attorney waived opening and gave a closing that was only 3 transcript pages long. (The attorney has since been suspended and declared ineligible to practice law in Florida.) The victim couldn't identify her attacker's face, but she thought Joe's voice "sounded similar" to her attacker's. The boy's attorneys think one of his older companions, who testified against Joe, is the true rapist. There was biological evidence from the 1989 rape, but DNA testing wasn't available at the time of Joe's trial. By the time his attorneys sought testing, the state said the evidence had been destroyed in 1993.

So Joe got a one day trial. Then he got an appeal, I'm sure. But I'm also fairly sure there wasn't much chance of reversal there. An appeal is really only as good as the trial, so if Joe's attorney didn't do much of an opening or closing, I'd guess he didn't do much else during that one day. The appellate attorney can't do much if the trial attorney doesn't lay any groundwork by filing pre-trial motions and making objections at trial.

But then he should still get a chance to ask for a new trial because he did not receive effective assistance of counsel. Because surely we wouldn't casually throw away a 13 year-old boy if his 6th Amendment right wasn't honored, right? But anyone who has handled post-conviction ineffective assistance of counsel (IAC) claims knows it's pretty difficult to convince a court a defendant's trial attorney was so bad he should get a new trial. Frankly, I think IAC review is a joke. Maybe I'm letting my cynical side show, but I doubt Joe got much real consideration for any 6th Amendment claim he tried to present in court.

Instead, we allow the result of one day of testimony to stand as the sole reason for tossing this kid behind bars for the rest of his life with no possibility of redemption. I think few things in life can really be that black and white. Many, if not most, crimes are of this nature, where even after a trial, there are lingering questions and completely credible suspects other than the convicted defendant. And most defendants really aren't hopelessly evil people with no redeeming qualities.

Maybe Joe Sullivan really did get a fair trial and thorough appellate review. And maybe he really is guilty. But maybe not. And maybe there really is no hope that he could ever be a productive member of society who could earn a chance to live on the outside. But probably not. Either way, it is unacceptable to me that we would allow this young man (who is still younger than me but has spent 20 years in prison) to rot behind bars without any hope of a different future. It certainly shouldn't be so easy to condemn him that totally for something that happened when he was 13.

Monday, February 2, 2009

Why put on 1 witness and 3 photographs when 2 witnesses and 17 photos will do? Few things annoy me more than evidentiary overkill at trial. I know the prosecutor is afraid I will make a stink about chain of custody or argue that they haven't laid a sufficient foundation. But I won't. I promise. I'm much more likely to complain about them boring me to sleep! Besides, chain of custody or foundation issues never go anywhere.

And it's always on some side issue that has little to no probative value. Like the 3 cigarette cutts found 50 yards from the crime scene that have no connection to anyone remotely involved in the crime. I really don't care about those cigarette butts, so you don't have to, either. You certainly don't need to introduce 10 photos of them, from every conceivable angle. Basically, if you find yourself asking the CSI guy who collected the butts, "And, again, this is that same cigarette butt from a different angle," you're overdoing it.

Sunday, February 1, 2009

I really shouldn't be allowed to go out drinking with prosecutors. I can't be trusted. I just can't let things go, so I inevitably have to challenge a prosecutor on a comment that was likely meant to be funny. But I believe every comment intended as a joke has a lot of truth behind it. So when a certain prosecutor makes some "joke" about it being ok to defend certain defendants, well I just can't laugh and move on. Nope, I have to be the one who has to chide the prosecutor that s/he ought to know better.

Then I get laughed at or get told to get off my high horse. But I'm really not going to apologize for not letting little comments like that go. Because it really isn't ok for a prosecutor to think that we're more justified in defending some defendants than others. And anyone prosecutor who doesn't understand that basic fact has no business being a part of the criminal justice system.

I quite enjoy the view from my high horse.
Blog Designed by : NW Designs