Friday, September 28, 2012

Terrance Williams lives!

For now, anyway. Even though a clemency board declined his clemency petition, a judge in Philadelphia has thrown out Williams' death sentence and granted him a new sentencing trial. Remember, this is the case where the prosecution alleged the motive was robbery while blocking the defense from presenting evidence that the victim had sexually abused the defendant (who was 18 at the time of the killing).

The judge accused the prosecution of "gamesmanship" in its efforts to win a death sentence at trial. The prosecutor's own files were filled with nuggets about the victim's sexual exploitation and abuse of teenage boys, including Williams, but none of that ever made it to the defense. (On a side note, a court has previously found that Williams received constitutionally deficient assistance of counsel at trial, yet somehow the death sentence wasn't vacated.) From the clemency petition considered earlier this month, we learned that numerous jurors from the original trial have said their verdict on sentence would have been different had they known then what they know now. So, yeah, this execution, scheduled for Oct. 3, really can't happen.

There is a lot to talk about with this case. It highlights so many of the problems that exist in capital cases. But for this evening, what I really want to focus on is this: if the prosecution will work so hard to keep the jury from hearing some evidence at the penalty phase of a capital trial, it has to be because they know the sentence verdict will be for life if the jury hears it. And if they know that there is evidence that will result in a life sentence, then shouldn't that also mean that they should know a life sentence is the right outcome in the case?

I will never understand how people can fight so hard for the right to kill someone. So they can show their own (and society's) moral superiority and assuage their own (and society's) outrage over the killing of someone. But worse than that is fighting so hard for the right to kill someone that society might not want killed if they knew the whole truth. Fortunately for Terrance Williams, the whole truth is finally coming to light while his sentence can still be corrected.

First do no harm

This headline brought some cheer to my day. I've always been troubled by the connection of any sort of medical professionals with executions. Well, I've always been troubled by the logistics of executions period. There is something so troubling about people calmly and coolly deciding the mechanics of carrying out the premeditated killing of a human being. I have always believed that whether people acknowledge it or not, participating in this process has to have a negative effect on people.

If I were involved in the manufacturing of some otherwise innocuous product that corrections officials decided would work well as part of an execution protocol, I'd certainly balk at having my work product used in that way. So I applaud the manufacturer of this drug who is now refusing to sell the product to a corrections department. If drug manufacturer, who are at least theoretically in the business of helping people, rise up and say they don't want their medications used in this way, that would throw a wrench in the capital punishment works. And I am A-Ok with that!

Tuesday, September 18, 2012

Does this guy deserve clemency?

How many people think the death penalty is an appropriate punishment for someone who sexually abuses children? Read any story about a man accused of molesting a 6 year-old and you'll see comment after comment calling for all manner of horrific ends for that man. To some people, no form of torturous death is too cruel. And they'd line up to administer the punishment themselves. Or throw a parade for the person who did.

Unless that person happens to be an 18 year-old black man in Philly. Who was once the 6 year-old victim. Who grew up in chaos, with adults everywhere continuing to abuse him. When that guy beats his abuser to death, he gets the death penalty.

Terrance Williams was convicted of murdering Amos Norwood in 1984. At trial, the prosecution alleged the motive was robbery and persuaded a jury to sentence Williams to death. The prosecution made sure the jury never heard any of the sexual abuse history of Williams. Or of Norwood's part in that abuse.

Williams is now scheduled to be executed on October 3. His lawyers took his case to the Pennsylvania State Board of Pardons this week, seeking clemency. They hoped that hearing about the history of sexual abuse and hearing from 5 jurors who now say they wouldn't have voted for death had they known about Williams' history would persuade the board. But the board vote had to be unanimous and not all 5 members agreed. So Terrance Williams will probably die in two weeks.

I confess. I find this one hard to figure out. I get that Terrance Williams shouldn't get a free pass on murder. I am obviously not in the camp of folks who thinks summary execution is justified for child molesters. But I don't understand the lack of sympathy for Williams. Abused since he was 6. Finally big enough to fight back. Clearly, no one else in his life had fought back on his behalf. It makes me sick to think that a kid like this never had any chance at a decent, normal life, never had role models or security or love, but then the second he becomes a legal adult, we'll sentence him to death because he somehow should have learned better life skills on his own.

While we can't condone the method he came up with for fighting back and standing up for himself, maybe we oughta not kill the guy for it.

Monday, September 17, 2012

Shaken Baby Syndrome: The fake diagnosis we can't seem to shake

The myth of shaken baby syndrome continues. And defense attorneys everywhere go a little bit crazy. Or crazier, I guess. (At least, I hope they do because they're up to date on the medical and legal literature on the  topic.)

According to this story, a 19 year-old man in New Jersey has been charged with manslaughter and is accused of shaking his girlfriend's baby to death. There's just one problem: shaken baby syndrome is bunk. For decades now, we've been convicting people of some form of manslaughter or murder for shaking a baby too hard, so hard that the baby suffers massive brain trauma. But the fundamental underlying premise of the syndrome is flawed. Deeply flawed. So flawed that the syndrome has been renamed to Abusive Head Trauma (still a flawed name, though, as it doesn't just identify symptoms but presumes a cause).

I'm not going to get into all the details here. I haven't ever dealt with an SBS case, so I'm not as well-versed in the medical issues as I could be. Instead, I would refer you to this law review article (shameless plug: one of the authors was one of my advisers in law school: go Keith!).

Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right

The bottom line is that shaking as a mechanism for causing these head traumas has been debunked. The amount of force that would be necessary would also show massive injuries to the infant's neck. But SBS cases never involve those injuries. The premise is that a triad of symptoms exist (subdural hemorrhage, retinal hemorrhage, and encephalopathy) that trigger a diagnose of this shaking trauma and that the onset of symptoms can be used to pinpoint the time of injury, thus identifying the perpetrator. But none of this is true. This triad of symptoms can occur from all sorts of natural and accidental causes and the onset of symptoms can vary widely.

Understandably, this is a hard topic for medical researchers to investigate because one cannot test the hypotheses on actual infants. So it has taken some time to realize the flaws in the premises behind SBS. But we have enough information now that we ought to have moved past still perpetuating the myth that people shake babies to death. Sadly, though, it is still a widely accepted concept. Then what happens is that a parent or family member or caretaker reeling from the death of an infant is confronted with this medical theory and urged to admit getting frustrated and possibly shaking the baby a little too hard. An awful lot of people have been convicted this way, which ought to trouble all of us.

In this New Jersey case, I have no idea what the circumstances are. Maybe there really are severe neck injuries to the child, but there probably aren't. And if there aren't, it's not a shaking case. (Sort of like the vast majority of purported shaking cases...) Perhaps it is clear that this young man is responsible for the child's death through some form of abuse and the use of the word "shaking" is just loose terminology. He may well be responsible, but we're not going to get any sort of reliable result if the police and prosecutors continue to pursue cases as shaking cases. Because the truth is there really isn't any such thing.

Sunday, September 16, 2012

Dark sports days in Kansas City

Oh, Kansas City sports. I want to love you. I do love you. But you make it so hard. It's starting to feel like loving an abuser.

I grew up listening to every Royals game. My parents always let me wear my headphones at the dinner table, as long as I only covered one ear and followed along with the conversation. Oh, and as long a I kept my parents informed. I named my stuffed animals after Royals. I cried when my favorite player got traded away. The Royals winning the World Series in 1985 was the highlight of my childhood. But then Dick Howser got a brain tumor and it's all been downhill since.

And then there are my Chiefs. I have a couple of stuffed animals named after them, too. I've watched every game possible. I have jerseys and hair ties and, yes, even underwear. I make sure I always have my red cowboy boots ready for game day. But none of that matters as they don't seem to know what to do in any phase of the game.

But, damn, you guys just refuse to reciprocate. You lose and you lose and you hire horrible coaches and make awful trades. You get blown out by the Buffalo Bills and get swept by the Minnesota Twins (whose fans are the absolute worst when they come to my stadium). For crying out loud, I'm considering this Royals season fairly decent because we're in 3rd place in our division. We're not last!

Maybe life wouldn't seem so dreary and depressing if I didn't let you drain all my hope and optimism and positive energy year after year. Maybe, just maybe, it's time for me to quit you.

But I won't. I can't. You know I'll keep watching every Royals game til game 162. And I'll still tune in for the next 14 Sundays, even if it's just to watch the Chiefs bumble and stumble their way to a 2-14 record. (Which seems like a lot of wins for the team I'm watching today.) And next March, I'll be optimistic and excited for the new Royals season. And next August, I will eagerly await that first snap. So keep abusing my love, guys, because you know I'll come back every time.

You should probably thank Sporting KC for it if I don't lose all hope. Because they are finally giving KC sports fans what we so desperately want: a winning team with a real shot. They've already won a trophy this season, winning the US Open Cup, which gets them into a tournament involving the premiere teams from all the leagues in our World Cup qualifying region. And we're leading the Eastern Conference with one of the best records in all of MLS. No pressure, Sporting, but I'm pretty sure all of KC's sports hopes rest on your shoulders...

Hey, at least the Chiefs finally scored a touchdown today. So now we're only down by 25 with 6:26 to go.

The new Kansas motto: Have faith, will govern

This article scares the $*&^ out of me. It's everything that is wrong with this new evangelism that has taken over the right wing in this state, which is pretty much the body of power. They really are intent on turning this state into a theocracy, all while maintaining that it's entirely consistent with a democratic republic. Our governor is a C Street guy and the majority of our legislators are with him. After the November elections, it will likely be the vast majority as the right wing targeted the only remaining moderates in the primary and succeeded in kicking them all out.

At first, it seems pretty harmless. This chaplain for Capitol Connection, an organization active in 19 statehouses across the country, sets up prayer chains and groups. They run prayer breakfasts and bible studies over lunch. Of course it's all voluntary, so what's the harm, right?

But keep reading this article, because it gets so much worse. An employee at the Kansas Department for Children and Families died. The supervisor sent out an email that included a portion of the Lord's Prayer and set up a prayer service during office hours. My office once suffered the unexpected loss of a colleague. We were all stunned and sad and looking to each other. If the head of the office had sent out an email with a religious message, I would have been offended. If he had gone a step further and organized a prayer service at work, I would have been angry enough to quit. Religion and the office, especially a state office, just don't mix. The DCF office wisely decided not to go through with the prayer event at the office during office hours. Instead it was held after hours somewhere else. This particular department has been entirely revamped and largely restaffed when the new governor took office in 2011. As a result, there appears to be a broad new emphasis on faith-based services and initiatives that push a view of family structure the governor and his cronies see as biblical.

I can't help but wonder how employees at that agency who didn't participate in the after-hours service were viewed. Or who don't share the biblical views of their department leaders. If I worked in social services, I would certainly not want to promote the notion that marriage is the best way out of poverty for women. What happens to those employees? Are they marginalized and pushed out? And how about legislators or staff members who never attend that weekly prayer breakfast or bible study? Are those employees who don't outwardly profess a Christian faith less valued? Less likely to get their ideas heard or be promoted?

The scariest part of this article is the very end. The pastor who is the focus of the article indicated that some caution needed to be exercised in deciding which religious groups have access to the statehouse. Apparently in the Kansas capitol, not all religions are equal. The Westboro Baptist Church, those crazy picketers based in Topeka, might be a problem, according to the pastor.
"That's not the kind of religion we're talking about," DePue said. "We're talking about the good Samaritan kind of religion where you turn the other cheek."
Wow. At least he's honest about it. He went on to suggest that Muslims also shouldn't assume they have access.
"They can apply," he said. "The main concern would be security. Probably that would be a valid reason. With security, if they felt it was an insecure situation, they would be told no."

So the message is that faith is welcomed at the Kansas capitol. Embraced, even. Championed and heralded. As long as it's the right faith. And the right brand of the right faith. Muslims are mean and scary. The WBC is just mean. So they can't come in. One assumes that Buddhists and Jainists, being pretty darn peaceful types, would be ok. But Wiccans are probably too weird.

And, of course, what about those of us of no faith? Would we be more or less welcome than those scary terrorists or the hateful wackos? Do we have any place in the statehouse according to this guy and the great majority of our state legislators? I don't think we do, which is as much a violation of the First Amendment as it is to declare that Muslims and the WBC need not apply for access.

Obviously, one's worldviews and political view are informed by one's religious views or lack thereof. There is no way to remove that individual influence of religion on politics. But those people who are elected to the statehouse have an absolute obligation to remember that not everyone shares those religious views. And we have a right not to have the religious views of others imposed on us. From this article and other things I have observed in the past year and a half in this state, I don't think that a lot of our leaders understand that they're doing anything wrong.

Wednesday, September 12, 2012

You know what would be great?

To have an easy week with no stress or drama or frustration. A week when I could breathe and not cough. When nothing goes wrong, nothing needs to be fixed.

I haven't had one of those in a long, long time.

My latest same-sex marriage rant

Only about half of US states, first cousins can marry each other. The age of consent for marriage can vary wildly state by state. And yet, those married first cousins or 14-year-olds can go to any other state in the country and file a joint tax return or seek a divorce. All of those spouses would receive whatever federal death benefits federal law would entitle a spouse to. There's no confusion, no limbo state where the couple is only considered married in the states that issue marriage licenses to couples like them.

We're beginning to see why treating same-sex marriages differently is such a problem. A married couple moves to Texas where the marriage sadly falls apart, but they can't get divorced. A woman dies, but her surviving spouse is denied the veteran death benefits she would be entitled to if she were male.

And now we've got two Senators who think it's a good, perhaps necessary, idea to pass a law banning same-sex marriages or "marriage like ceremonies" from occurring on military bases. Yes, even military bases in states where same-sex marriage is legal. I can't help but noting that (to the best of my research) both states represented by those men prohibit cousin marriages. So why aren't they worried about keeping those ceremonies off of military bases? In the legal world of differing marriage restrictions state-to-state, why does same sex marriage get to be singled out for unique treatment? Especially given the problems that arise from the treatment.

The fact is that DOMA is a hot mess of a law and pretty unconstitutional to boot. The Feds shouldn't get to refuse to recognize legal marriages. Frankly, nor should other states, as they're not allowed to ignore other types of marriages that wouldn't be allowed within their borders. If the complaint is that if we actually do offer full faith and credit to same sex marriages, then same sex couples can be married in every state of the union, well, I've got news for you. That's already happening. Even if they live in states that prohibit same sex marriage, don't you know couples who have traveled to a state where it's legal? I sure do. For crying out loud, if two people will go to all the trouble and expense to travel to another state to get married even knowing that they'll come home to a state that won't recognize said marriage, doesn't that say a little something about their love and commitment to each other?

You know what, states? Maybe it's not the worst thing if each state gets to decide for itself whether it will issue same sex marriage licenses or not. But we really need to be done with treating those lawful marriage licenses that states choose to issue any differently from any other marriage license. Texas would let two married cousins get divorced, even if the state wouldn't let them get married to begin with. It's time to extend the same courtesy to same-sex marriages. Because this mish-mash of laws, this uncertainty and limbo that legally married couples are forced to live in isn't right.

Monday, September 10, 2012

Facebook can be dangerous for friendship

I don't mind if my Facebook friends are Republicans. I don't mind if they're Romney voters. I don't mind if they hate Obama with a fiery passion (as long as it's based on his policies only and not on the color of his skin). I appreciate thoughtful, considered differences of opinion and value open dialogue. Good, well-intentioned people can and do disagree, especially on the tough issues. After all, they wouldn't be tough issues if we'd solved them long ago.

But I do mind if my Facebook friends are blithering, bigoted idiots who post crap like this on Facebook. I mind if they're too stupid to stop and think that it's probably unlikely the President of the United States would bother to stop a news channel from airing a silly, pointless waste of time like this very uninformative video. (Not to mention that half the darn clips are from FOX News to begin with and it seems unlikely that the powers that be at FOX News give a hoot what Obama and his folks think.) I mind if they're such religious bigots that they think it's some  kind of explosive, must-be-seen expose that claims to prove the President is Muslim. Especially as our Constitution explicitly prohibits there being any sort of religious test or oath for any office-holder. I mind if they're so narrow-minded and hateful that they think reaching out to peaceful Muslims is something only other Muslims (or people who really, really  hate America) would do. I mind if they're so culturally-insulated that they have a problem with our head of state visiting a mosque in Turkey, thinking it's a sign of some kind of subversive plot to destroy America as we know it.

I do not mind that this particular Facebook friend is someone who has fallen out of my regular circle of friends and is someone I have not seen in person in two years. If she can thoughtlessly fall for this ridiculousness, she isn't the educated, intelligent person I thought she was.

-I do realize that I am contributing, albeit in a small way, to the further spread of this ridiculous video on the internet, but I was just so stunned that I'm actually friends with someone who would post it, I had to rant about it.

Pat Robertson is a bad, bad man

I'm sure I should not continue to be surprised, astounded, horrified, etc. by the offensive nonsense that comes out of Pat Robertson's mouth. But sometimes, I still find myself unable to believe he actually said that.

Because, yes, he actually said this.

Apparently this came during the portion of the show where he offers helpful advice to viewers. He's such a Renaissance man. News analyst. Politician. Dear Abby. All rolled into one.

The male viewer wrote in asking for advice in how to handle his wife, saying, "My wife has become a real problem. She has no respect for me as the head of the house. She insults me and she even went as far as stretching her hand to beat me. I've lost my self-confidence. Her words hurt so much and she refuses to talk through our problems..."

And what did Pat say? "Well you could become a Muslim and you could beat her."

He goes on to state that we don't condone wife beating any more, in a way that makes me think he's a darn shame we don't condone wife beating any more. Something's got to be done, he says. She doesn't want to recognize any authority. Someone needs to stand up to her because he can't let her get away with this stuff. She's a 13 year old in a 30 year old's body. So since you can't divorce her, good viewer, move to Saudi Arabia.

You really can't make this stuff up.

Did it ever once occur to him to question what the husband's role in this situation was? Did it occur to him to wonder whether the wife stretched her hand out to beat him in response to a beating she herself was receiving? Did it occur to him to ask if the insults and lack of respect went both ways? Isn't the first thing any marriage counselor should do is to ask both spouses to consider their own individual behavior and roles in what got them to needing an outsider's help?

Not in Pat's world. In Pat's world the man is unquestionably the head of the household, due total respect in all thing. He is also unquestionably telling the full and unvarnished truth. While the woman is a rebellious little hussy who probably hit her father and needs to be taught a lesson the way they teach those lessons to willful women in Saudi Arabia. And he probably thinks his god might want to impress upon the hearts of American politicians that we should really give that wife-beating thing another try.

Well, in my world, if a man turn to this misogynist for advice on marriage, that should be exhibit A in his wife's divorce petition. A man who would turn to Pat Robertson for advice isn't looking for a thoughtful solution to a complex problem. He's just looking for validation that he, the man, is right and that dirty, dirty whore of a wife of his needs some corrective measures directed her way. Like a one-way trip to the middle east and whatever kind of domestic violence those enlightened folks condone.

It is a sin and a shame that this man still has a daily national television platform from which to spew his twisted views. If this won't make the networks and stations that air his show rethink that choice, I don't know what will. Because this is really bad.

Saturday, September 8, 2012

In which I explain all of the Drew Peterson/hearsay issues in one fell swoop so that my head won't explode

I always love how a case like the Drew Peterson case makes everyone a freakin' expert on hearsay. People who couldn't correctly define the word to save their lives are just darn sure they know it's an outrage the evidence was admitted in this trial or can state with absolute certainty that the conviction will be overturned on appeal. They repeat their opinions over and over online. And they sound smart enough, measured enough, reasonable enough. But when they try to explain to me some nuance or respond to me with a comment that starts with, "But...", it makes me want to scream. You armchair experts who watch a lot of Law & Order and maybe took a Con Law class in college may know more than most people. But I really and truly am an expert. An actual, honest to gosh expert!

Now I might qualify as an expert on criminal law generally. But if I were to pick a particular area within criminal law that is my wheelhouse, my specialty, it would be hearsay/Confrontation clause issues. You know, the issues central to the trial of Drew Peterson. And so nothing makes me crazier, really, than all the armchair experts and slick tv pundits who talk and talk and talk with tremendous certainty about how the trial was a farce or the hearsay so clearly inadmissible or the guy so obviously guilty or etc., etc. Because the truth is almost none of those people have the first freaking clue what they're talking about. Yet not knowing all the facts or procedural history or law won't stop people from spewing their opinions.

Part of the problem is that no one ever seems to stop to do all the research necessary before answering a question. Ask a lawyer a straightforward question and you'll almost never get a straightforward answer. (If you do, you either shouldn't trust that lawyer or have the easiest legal issue ever.) Because a good lawyer knows that there are always more questions to be asked, more facts to be known, and more nuances to consider. It appears that many of the lawyers who sell themselves as talking heads and pundits to the news aren't terribly good lawyers.

Now, look at a story like this one from CNN's coverage of the Drew Peterson verdict and, boy, you'd sure come away thinking there's no way this verdict stands up on appeal. And, hey, it's a reputable news source, right? But even the best-intentioned news reporter isn't (usually) a lawyer and probably doesn't know from a legal standpoint what the important facts are and aren't. Also, I'd bet good money that whoever was providing legal advice to this particular reporter hadn't actually researched this particular case because there are so many things about the CNN article that are just wrong. Meanwhile, currently has a video up posing the question of whether his verdict will be overturned. But the brief video clip doesn't give any decent analysis of the legal issues, either.

So let me break it down for you. And pay attention, y'all, 'cause I actually know what I'm talking about.

1) Hearsay is any out of court statement offered to prove the truth of the matter asserted. My favorite example is you tell me you're Napoleon. So I go in to court and testify that I heard you say, "I am Napoleon!" Now, if I'm offering testimony in a case where your mental state is important, I can provide this testimony because what matters is what I heard, not whether it was true. You saying that you think you're Napoleon is pretty good evidence that you're nuts. In that situation, what matters is whether I'm being truthful about what I heard, not whether you were being truthful about what you said. If the trial issue, though, is whether you are, in fact, Napoleon, my claim that I heard you say that you are isn't admissible. Because then it's your credibility that matters, not mine. What matters is whether what I heard you say is true, not whether I heard it. Your credibility, not mine. Ok?

2) Hearsay evidence comes into court in just about every trial ever. There are roughly two dozen exceptions to the hearsay rule. Obviously if a defendant confesses, that can come in at trial. Even though it's an out of court statement offered for the truth of the matter asserted. Any document is necessarily hearsay (because it was prepared outside of court), but documents are admitted at every trial. If no hearsay could ever come in, no one could ever be tried.

3) The Confrontation Clause is the relevant Constitutional provision. Not all hearsay, though, implicates the clause. So not all hearsay issues are Constitutional issues.

4) In 2004, the US Supreme Court strengthened confrontation protections in the case Crawford v. Washington. This is the case referenced in the CNN story. But it hardly said hearsay can't come in at trial. First, the case distinguished between two types of hearsay: testimonial and non-testimonial statements. Testimonial statements are things like actual testimony at a hearing or deposition or interviews with police. Statements made with some formality or thought towards prosecuting the accused. Non-testimonial statements are things lacking any formality, state involvement, and/or eye toward prosecution (very roughly speaking). So things like casual statements to a friend over coffee. Or to a family member or a priest. Probably non-testimonial. Ok, still with me? So if you have a testimonial statement that the prosecution wants to introduce at trial against a defendant and the person who made that statement is unavailable, that statement can only come in if the defense has had an opportunity to cross-examine that witness. It makes no difference if the statement might fit a hearsay exception. But if the statement is non-testimonial, the statement can come in if it fits a hearsay exception whether the defense ever got to examine the speaker or not.

5) So the first thing we have to do with all the disputed hearsay in the Drew Peterson case would be to figure out whether any of those statements are testimonial. (This blog post lists the statements.) I'd take a pretty good shot at arguing that Stacy Peterson's statements to her attorney should be considered testimonial because she made those statements for the purpose of preserving them with an officer of the court in case something happened to her such that she couldn't testify somewhere. But I really don't know how far I might get with that argument. I think some of the statements to family and friends would be non-starters. Given the trend in the case law, I don't think many courts would even entertain that argument. I'm afraid we might find a lot of courts that would find that none of these statements are testimonial. In which case, the Constitution, the 6th Amendment, the Confrontation Clause are irrelevant. Completely and totally irrelevant.

6) Then there's the special law Illinois passed in 2008 that's commonly known as Drew's Law. In short, Illinois created a hearsay exception that says hearsay can come in if the declarant was murdered by the defendant and the defendant murdered the declarant for the purpose of preventing him or her from testifying in court. Now at first blush, it seems wrong that a state legislature would pass a law for a specific case or person. You can't do that! Well, hold on. Bills of attainder are unconstitutional, true. But that isn't what this is. A general statute with general applicability to all persons in the state are ok. And if you think about it, how many statutes are passed after one particular case or situation reveals a need for the statute?

7) But the second and more important thing about Drew's Law: the hearsay statements in Peterson's trial weren't admitted because of that statute. Not that you would have any idea from reading any of the stories about the case. But you would if you'd read the decision of the Third District of the Illinois Appellate Court from April 2012. Which I have. And now you can, too. (The redacted page is the list of statements that was sealed as no trial had occurred yet.)

8) Now what happened is this: the district court considered all of the hearsay issues in a pre-trial motion and ruled, under Drew's Law, that most of it couldn't come in. Yep, you read that right. Under the special law passed just to convict Drew Peterson, the district court found that the disputed hearsay was inadmissible. Because the state statute requires the district court to make a reliability finding about the statements, which this court said it couldn't find. So they were out. In rare situations, the prosecution can file an interlocutory appeal on a decision like this that will so radically affect the trial, so they did.

9) So we get to the appellate court. And here's the next part that no one seems to understand. The appellate court basically said none of any of what I've already written about matters. Because there is a common law doctrine that goes back over 100 years that means Drew Peterson has waived his right to challenge the admissibility of any statements of Kathleen Savio or Stacy Peterson. So it doesn't matter if those statements are testimonial or not. It doesn't matter if they're reliable or not.

10) And here's where we get to the real crux of the case: forfeiture by wrongdoing. Prior to Drew's Law, Illinois courts recognized this doctrine. Under the doctrine, a defendant who renders a witness unavailable and does so for the purpose of preventing that witness from testifying in court has waived, or forfeited, his right to complain about the admission of that witness' statements in his trial. To satisfy this doctrine, the prosecution had to make a threshold showing by a preponderance of the evidence that Drew Peterson made both Kathleen and Stacy unavailable (whether by murder or otherwise) and that he did so to make sure they couldn't testify against him. The district court made this finding. Ergo, any and all statements made by either of them can come in at trial.

11) And the United States Supreme Court has explicitly approved this doctrine only 4 short years ago. In the 2008 case, Giles v. California, the Court said that, yes, forfeiture by wrongdoing remains a valid doctrine even after Crawford. The Court, though, did narrow the scope of the doctrine. Some states wanted to apply the doctrine any time the defendant made the victim unavailable, which would basically mean any statement by any victim in any murder case ever would be admissible at trial. The Court insisted that it could only apply where the defendant got rid of the witness because s/he was a potential witness. The district court in Drew Peterson's case made the requisite finding, so we already know that the US Supreme Court shouldn't have any problem with this case.

12) In my view, the best appellate avenue is to argue that the appellate court was wrong to say that the more expansive common law doctrine could apply to the case even after the legislature passed the more restrictive statute. I don't know enough about Illinois law to know whether the Illinois Supreme Court will be receptive to that argument or whether they will agree with the lower appellate court's decision. But that question is purely a question of state law that has nothing to do with the federal Constitution and so would not be reviewable by the US Supreme Court. And given that Drew Peterson's own lawyer is still screaming about Drew's Law when the appellate court decision pretty clearly says this case doesn't come down to Drew's Law, I don't have a whole lot of faith in his defense making the right argument on appeal that applying Drew's Law would actually help his client.

13) And finally, I just can't let the CNN author's claim that these hearsay statements wouldn't come in in any other state go 'cause that's just not true. Not even close, as you ought to be able to guess if you follow all of the steps I have laid out above.

Phew! That was really long, I know. And I appreciate those of you who made it to the end. Personally, I feel much better knowing that I at least got to lay this all out somewhere on the internet. This case isn't all that much of an outrage. It isn't even all that unusual. It's certainly not the death knell for confrontation or for due process or democracy or whatever. I think it's pretty likely it won't get anywhere on appeal. (Though, of course, like any good lawyer I must hedge on that as I don't have access to the transcripts so don't know what issues and arguments were raised and do not know what the district court's rulings at trial were.)

Christopher Darden, crybaby

Christopher Darden should probably keep his mouth shut. What he shouldn't do is now, 17 years later, hurl vague accusations at the defense attorneys who represented OJ Simpson at his murder trial. Ooh, the defense attorneys must have manipulated the glove, futzed with the lining, spirited the evidence out of the courtroom during a break so they could rip it.

Sure, man. Sure that's what happened. You didn't lose that case because the prosecution tried the most epically awful case ever. Taking 9 months to put on evidence is obscene and unnecessary in almost any case. Of course you lost. The jury HATED you for taking up so much of their lives!

But rather than focusing on all the stupid things the prosecution did in that trial, let's just talk about this one stupid thing. If you want to blame anyone for the glove incident, it needs to be you. You're the idiot who let yourself get goaded into having OJ try the glove on in the courtroom. You know how you never ask a question you don't know the answer to? Well, that's kinda what you did there. At least it's the same principle. You let the witness have control over something in front of the jury. That's entirely on you. And, really, trying on a dried out, tight-fitting leather glove over a latex glove? You couldn't possibly have thought that would end well, did you? Every trial advocacy professor in the nation was screaming at the television the day you let that happen.

Now, though, instead of just owning up to what a boneheaded mistake you made, you're making accusations. You are accusing defense attorneys of violating the ethical rules of the profession. I take that very seriously. And as you should well know making unfounded accusations is itself a violation of those ethical rules. So you might want to think about it a bit more. The accusation you are making, though, potentially also rises to the level of a crime. Manipulating physical evidence could most definitely be considered obstruction of justice, no?

It's easy to hurl these accusations 17 years later, knowing that no one will, or even really can, look into them. Memories fade and no one will be able to say whether the bailiff charged with securing the evidence during breaks turned his back for a minute or left the room. And the main target of your accusation, Johnnie Cochran, isn't around to defend himself.

So once again, sir, I would recommend that you just shut up. You lost. You screwed up big time. And to now make baseless accusations that can never be substantiated because so much time has passed makes you look like a sour grapes crybaby loser. And an unethical jerk to boot.

Thursday, September 6, 2012

You know what. Maybe he's a doofus who says all manner of stupid things. But I love Joe Biden. Of all the major party ticket members, if I had a crisis, he would be the one I would want. If my parents died in a horrible accident or my sister perished in some unexpected way, he just seems like the guy who would sit with me all night long. This isn't how I choose to vote for people, by any stretch. I'm just sayin' as a friend to see me through the worst times, I don't think one could do much better than Joe. That's just the sense I get from him. Which is probably why I tend to be so forgiving of the dumbass stuff that comes out of his mouth.

On jury questions

I never cease to be amazed by the questions that juries will ask while they're in deliberations. Sometimes they ask pretty straightforward questions, like for readbacks of particular testimony or to watch a videotaped interview again. Sometimes they'll ask for more cigarette breaks, something else for lunch, or to get rid of that awful juror who is annoying everyone else. Sometimes they'll ask for clarification on a point of law that the judge can't answer because even the judge doesn't know the answer. (And, boy, when it's that one, it's incredibly frustrating for the defense attorney because it shouldn't be up to the jury to decide what the dang law is!)

But this particular question is the type of question that most strikes fear into my heart, into the heart of any criminal lawyer as we are forced to rely on jurors to settle our cases. "What does unanimous mean?" Really? That's not an ambiguous word with multiple possible meanings. It's not a word that should lead to any jury confusion. Yes, it's a four syllable word, but it's a pretty simple one. Unanimous means agreed on by all. That's how the district court answered the Drew Peterson jury's question. I personally find it amusing that the state wanted the judge simply to refer the jury to their instructions because if the instructions they'd already received would answer the question for these idiots, the jurors wouldn't have asked the question. (Personally, I fall in the camp of those who argue that if the jury asks a simple question, it should be answered directly.)

Now I get that not all trials in all states require unanimous jury verdicts. Some states don't require unanimous verdicts for some civil cases or for misdemeanors or for sentencing recommendations on capital cases. But I'm fairly confident that in those cases where verdicts can be something like 10-2, those juries are so informed. Juries generally aren't left to guess about how many votes they need on each side to have reached a verdict.

I'd like to think that this jury is really asking something more like, "What do we do if we aren't unanimous?" But that isn't what they asked. Instead, they asked what this obvious, basic word means. And as someone who has to rely on juries to decide whether her clients live or die, this question terrifies me. Because sometimes the people holding my client's life in their hands are total idiots.

Wednesday, September 5, 2012

Where's Your Merit?

For reasons we don't need to get into, I pulled out my old college yearbook tonight. As is usual of yearbooks, the seniors get extra room. For my college (Carleton!), seniors could have a page designated for a group of 5-6 of them. My friends did just that. So me and P and H-B and CY and A and C did a page together. (Sadly, there wasn't room for D, though he was represented on our group page.) For 6 people, we got 7 photos. A group photo and then one designated for each of the 6 of us. Along with the photos, we each got to include a short quote or two.

(On a side note, H-B was off campus the term we had to put this all together, so I picked her quote. Hope she likes it...)

For my own quotes, it's no surprise that I picked Crowded House lyrics, as Crowded House is the greatest band ever. And is responsible for A's current happiness. (You're welcome, A.)

But it's my second quote that struck me tonight. Because it's a quote that still resonates with me. I think it's a quote that I would still, nearly 17 years later, choose as my quote. It's from "Emma," one of my 3 favorite Jane Austen novels. (No, you can't expect me to be more specific because asking me to choose 1 specific favorite Austen novel is like asking me to pick a favorite parent or star or sport.) It's a quote that was pointed out to me by the English professor who taught the Jane Austen course (which H-B, the English major, took with me) and a quote that has stayed with me since.

Early in the novel, Emma takes credit for creating the match between her beloved Miss Taylor and Mr. Weston. Mr. Knightley turns to Emma and asks her, "Where's your merit?" He's asking her how she can take credit for this match. As my professor put it, Mr. Knightley is asking her to prove herself, her worth, her very merit, and Emma spends the rest of the novel answering that challenge.

In everything I have done since that Jane Austen course my junior year of college, I have remembered that line and thought how to answer it. Obviously not in the direct context as I had nothing whatsoever to do wiht Miss Taylor marrying Mr. Weston. But in a broader context. That question has humbled me, made me focus on what I am doing to help others, rather than just myself. I have since 1994 thought about whether what I am doing is truly helping others or whether it is purely in my own self-interest. Though Mr. Knightley wasn't speaking to me, though he wasn't even a real person, I have heard that challenge, that admonishment, in my head for two decades. Possibly because it matches closely to a lesson my mom taught me long before college.

I know I haven't always (or even often?) succeeded. Heck my biggest ever failing might involve a cat named Mr. Knightley. (I'm sorry!) But I think I've made up for it with my treatment of my sweet pup. And my dedication to my clients and my colleagues. (I hope.) And, most importantly perhaps, to sweet little 21-year-old me who picked that quote. Because even if I don't always succeed or live up to it, I really do always try to show where my merit is, to be a good, kind, selfless person. I try not to let my considerably-younger self down. I think the mere fact that I would still include that quote on my senior page would satisfy College Sarah. I certainly hope so, because of all the people I might feel the need to prove myself to, she would be #1.

Oh, Jerry Sandusky

Oh, Jerry Sandusky. Don't bother regretting that you didn't take the stand at your trial. It wouldn't have changed the outcome. The sad, hard truth is that it's the rare defendant accused of child sex offenses who can help himself by testifying. The cold hard truth is that juries come into these trial expecting to find the accused guilty. They may not say it, but that's how they feel. They expect to believe the accuser. They start from a place of believing that no one would lie about this stuff. It is the rare, rare case where the defendant can convince them otherwise.

The way to win these cases is to make the jury doubt the accuser. Defendants are in a no-win situation. Because even though a jury is instructed not to infer guilt from the defendant's refusal to testify (aka his exercise of his 5th Amendment right), deep down we know that they do. But they can't help themselves by testifying, either, because any denial will just sound like what a sex offender would say. It's really hard for anyone, even the most earnest, innocent person to sound convincing when denying allegations of child sex abuse.

Given the sheer number of accusers against Sandusky and the testimony of the graduate assistant coach who says he saw a sex act occurring, there is almost no way he could have helped himself by testifying. Denying that many accusations is nearly impossible. The defense attorney really is the best chance for winning a child sex case, not the defendant. The defense attorney would have to create a compelling, coherent story about why so many allegations were made. It can be done, as we should all remember the day care trials of the '80s. Dozens of children were led to make false accusations, a fact that defense attorneys were able to set out for courts in many of those cases (unfortunately after people spent time in prison). But no defendant, no matter how compelling, could have convinced a jury of the falseness of those accusations.

And neither could Jerry Sandusky. Which is why he shouldn't waste any time or emotional energy regretting his choice not to testify. No one can talk his or her way out of accusations like this.

Tuesday, September 4, 2012

If I had half a million dollars, this is probably not how I'd spend it

This evening, I read this story in one of the local papers and thought how great it was to see a defense attorney making a compelling argument in support of a lesser sentence for his client. The defendant is a shoplifter, dubbed the Super Shoplifter for his long, long history of shoplifting. He is already sentenced to 11 or so years in prison and is facing up to 11 more. So his defense attorney found information from the Kansas Department of Corrections on just how much it would cost to put this shoplifter in prison for those extra 10 or so years and showed the court it would be upwards of $550,000. I'm betting this guy never came close to stealing half a million dollars worth of stuff from Wal-Mart. That'd be a lot of DVDs.

To me, this is a no-brainer. We incarcerate far too many people anyway. Our incarceration rates are insane compared to the rest of the world. It's such an uncreative answer. And an expensive one. Given that both this state and the country are in some difficult financial straits, doesn't it seem logical to allow a little fiscal sense to creep into our criminal justice system?

And yet, the comments on this story would suggest that an awful lot of people don't care if it's wasteful to spend half a million dollars to put a petty thief in prison for 20 years. Either people don't want to save the money and find some more cost-effective way of dealing with a petty thief. Or they'd like to find him a bullet or a rope, or cut off his hands. I find this attitude discouraging, to put it mildly.

That $550,000 could be so much better spent on schools, roads, energy, and so very many other things. I resent the notion that my agency will have to suffer further cuts, which we can't absorb, and that severely underpaid state employees who do thankless jobs won't get richly-deserved pay adjustments because we just have to keep this guy in prison for 2 decades.

But what do I know. I'm just a bleeding heart liberal who's soft on crime.
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