Inadequate Funding of Defense Experts

The New York Times has taken note of a 28-year-old case in which the defense, given only $1,000 to hire an expert witness, hired an inadequate expert.

Anyone who has hired a lawyer knows $1,000 doesn’t buy you much. But when Anthony Ray Hinton was on trial for his life in Alabama, that’s the total amount his court-appointed attorney thought he could spend on a key expert witness in firearms evidence. All he could find for that price was an elderly one-eyed man with a degree in civil engineering who was laughed out of court for his inability to answer basic questions.

If you look at the Supreme Court's decision, the reason that additional proceedings have been ordered in the defendant's case is much less the amount of money that was authorized, and much more the fact that the defense lawyer did not know he could seek more money and thus made no attempt to do so:

Operating under the mistaken belief that he could pay no more than $1,000, Hinton’s attorney went looking for an expert witness. According to his postconviction testimony, he made an extensive search for a well-regarded expert, but found only one person who was willing to take the case for the pay he could offer: Andrew Payne. Hinton’s attorney “testified that Payne did not have the expertise he thought he needed and that he did not consider Payne’s testimony to be effective.”...

Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.”

This was a capital trial, and the court was not trying to be stingy, authorizing the largest amount it believed was available under state law. But when I read people who have never been involved in indigent expense scoffing at the grant of $1,000 for an expert witness, I have some amazement at the gulf of understanding between what people believe should occur in criminal cases and what typically happens. Note, the attorney fee granted for that capital trial was a mere $1,600. The only way you can represent a client in a capital case -- or any serious felony case -- for that type of compensation is by cutting a lot of corners or by accepting that you'll be investing perhaps hundreds of hours in a case for which you'll ultimately be paid significantly less than minimum wage.

I recall a case I worked in the mid-1990's, where the court granted $1,500 for expert witness fees in an arson case. I commented to another lawyer that the amount was inadequate. He responded, "That's the most I've ever heard of a judge in this county authorizing for an expert." The situation can be at least as dire for defendants who retain counsel, where they will typically have to come up with additional money out-of-pocket to retain an expert. When it comes to expert testimony, between police investigators, crime lab technicians and their own funding for private experts, prosecutors have an enormous advantage.

Fortunately for my client, I found a fire investigation firm that was both highly qualified and willing to take the case, Safety Engineering Laboratories, with testimony provided by Donald J. Hoffman and Michael Kroll, but the $1,500 didn't even cover their out-of-pocket expenses -- they did the right thing, but no expert can devote that type of time and energy into what amounts to pro bono work on a regular basis. I recall also seeing a case in which a lawyer, having been denied adequate funding for certain pretrial work, had taken his claim to the Court of Appeals which had found his claim reasonable and had ordered reimbursement -- but for the time his case and the subsequent appeal were pending, that was money out of the lawyer's own pocket.

Perhaps the environment has changed in recent years, with the increased use of scientific evidence, but given the relatively low funding available for appointed criminal defense work in much of the country I would be surprised if judges are now routinely granting adequate amounts of money for defense experts. The type of funding you see in high profile cases, covered by the media, are anything but the norm.

"My Client Did Nothing Wrong"

Oh, boy...

Monday afternoon, Shellie Zimmerman called Lake Mary authorities to her parents' home, saying her estranged husband was threatening her and her father with a gun. Days earlier, she had filed for divorce... She later changed her story. According to police, Shellie Zimmerman and her father now say they never saw a gun, and no gun was found. Although CBS affiliate WKMG reports that Zimmerman's attorney, Mark O'Mara, said Zimmerman had a gun holstered to his body.

Shellie Zimmerman has said she won't press charges, but police say video of the alleged dispute on her damaged iPad could play into whether authorities file charges.... In her 911 call, Shellie Zimmerman said: "He then accosted my father then took my iPad out of my hands. He then smashed it and cut it with a pocketknife, and there is a Lake Mary city worker across the street that I believe saw all of it."....

Mark O'Mara, who served as Zimmerman's attorney in his murder trial in the death of Florida teen Trayvon Martin, said his client did nothing wrong in Monday's incident.

By "nothing wrong", does he mean "nothing criminal"? Let me guess... the iPad was severely depressed, and as much as Zimmerman tried to keep it in his wife's hands he was unable to stop it from taking a suicidal tumble from her hands.¹ Also, if O'Mara was telling the truth and Zimmerman was carrying a gun, where did he and his wife seemingly conceal it while waiting for the police to arrive - and why?

I suspect that the defense fund" gravy train is slowly going off of its tracks....
-------------
1. Or maybe the iPad was wearing a hoodie and he reacted reflexively.

Public Criticism of Verdicts

Jeralyn Merritt sometimes goes a bit overboard:

The Bill of Rights was designed to protect the rights of the citizen accused from the awesome powers of the Government. It was not enacted to protect the rights of crime victims.

The presumption of innocence is a bedrock of our criminal justice system that applies to the person charged with a crime, not the victim of a crime.

Self-defense is an affirmative defense that may be raised by a defendant in court in response to a criminal charge.

When partisan politics threatens the Bill of Rights, progressives especially need to get their priorities straight: The Bill of Rights must prevail. Those who disagree do a disservice to the word "progressive." Their backwards thinking is just the opposite.

Merritt has blogged extensively about the Zimmerman prosecution, and she practices criminal defense, so it's reasonable to infer that she's aware of the following:

1. When a defense is available to a defendant as an affirmative defense, the defendant has the burden of proving facts sufficient to support the defense, normally by a preponderance of the evidence.

2. In Florida, a claim of "self-defense" is nominally an affirmative defense, but once the defendant presents any evidence of self-defense, even the defendant's own self-serving statement, the state has to disprove affirmative defense beyond a reasonable doubt.

3. There is no constitutional right (a) to a "stand your ground" rule of self-defense, (b) to have the state disprove your claim of self-defense, or (c) to the ability to raise self-defense at all in most contexts in which the state deems such a defense to be inappropriate.

Merritt asserts,

Trials are conducted in courtrooms, not living rooms. The public has a right to view the proceedings. It does not have a right to inject its opinions into the proceedings or affect the outcome. The jury must base its decision only on the testimony and evidence produced at trial and the law as instructed by the judge. Morality has nothing to do with it.

The Sixth Amendment guarantees a defendant the right to a fair trial by a impartial jury. The jury is composed of the six people selected in court after a rigorous process designed to exclude those who cannot be fair. The public is not a member of the jury. It has no vote. Which is a good thing because the vast majority of the public commenting on this and every other high profile trial are all too willing to take an eraser to the Constitution and condemn a person, without having observed the proceedings from start to finish, viewed the exhibits admitted or read the jury instructions.

Merritt has seemingly forgotten that nobody outside of the courtroom owes the defendant a presumption of innocence, and that it is in fact possible for somebody outside of the courtroom to look at a case and conclude that justice was not served.

Taken at face value, who can argue? The public has no right to "inject its opinions into the proceedings or affect the outcome." But the trial is over, criticism of the verdict has absolutely no impact on that verdict.

Merrett seems to have no problem with criticism of a verdict following a conviction. I doubt that Merrett would condemn critics of the wrongful acquittals in the Emmett Till case or other lynching cases . We, outside of the courtroom, do have the right to criticize the conduct of a jury, the procedures followed in a case, and the laws that we believe (rightly or wrongly) led to an unjust verdict.

The right of self-defense is a limited right emerging not from the language of the Constitution itself, but from common law. There is no question that it would be constitutional for the State of Florida to follow the practice of most other states and place the burden of proof for self-defense on the defendant. Were the State of Florida to pass a law that holds that under circumstances in which a person armed with a gun engages in any course of action that culminates with his shooting an unarmed person outside of his his own home, that person cannot claim self-defense or may do so only to mitigate the charge and not to obtain an acquittal, there's a good chance that the law would be held constitutional.

Had Zimmerman been required to prove self-defense in the same manner that is typically required in other states, odds are he would have convicted himself with his own testimony or would have convinced a lot more people of his sincerity. Given Zimmerman's past statements about the case, and the contradictions and holes in those statements, it was anything but a surprise that he chose to stay off of the witness stand. Those holes and inconsistencies don't necessarily establish guilt, but they represent a big part of why a shadow remains over this case.

Whether a person commenting on the verdict has scrupulously reviewed all of the available evidence or is talking through his hat, it's that person's right to look at a verdict and declare, "An injustice was done here, and we need to think about changing the law so that it doesn't happen again - or at least to ensure that it's a lot less likely to happen again." If a sufficient groundswell of opposition to the verdict arises that we have a public policy discussion, that's normally going to be a good thing - even in those situations where people who know the details of the case often find themselves frustrated by how little the general public knows of the actual facts.

Is the Zimmerman Case a Recipe for a Miscarriage of Justice

In one sense, there can be no question but that the Zimmerman prosecution is a recipe for at least a perception of a miscarriage of justice, because no matter what the verdict there will be an enormous population of people who will be convinced that the outcome was unjust. Chicago Tribune blogger Eric Zorn suggests that the "Zimmerman trial has all the ingredients for a miscarriage of justice", but in saying that he's concerned only with wrongful conviction - which, in fairness, is a far worse outcome from a standpoint of the integrity of our legal system than a wrongful acquittal.

In following the George Zimmerman trial somewhat closely online last week, I noted a familiar pattern:

A "heater" case that draws intense media interest.

Sympathetic victim.

Unsympathetic defendant.

Evidence of innocence explained away with far-fetched theories or else ignored.

Evidence of guilt magnified and bolstered with irrelevant detail and innuendo.

These are among the key ingredients for all the wrongful convictions I've written about in the last 20 years.

I think that Zorn's statements about the defendant and victim are misleading - I cannot recall a murder case in which I've heard more impassioned defenses of a killer, and I would be hard pressed to find one with greater public vilification of the victim. Even Zorn gets into the mix:

Martin wasn't the slight middle-school student seen in first photos of him made public, but a tall, athletic 17-year-old who'd had plenty of time to walk safely home once he knew he was being followed. Zimmerman was of mixed ethnicity, and he'd lost sight of Martin that night while attempting to keep an eye on him for police.

Zorn later expresses to a critic of that statement,

[H]ere http://blogs.chicagotribune.com/news_columnists_ezorn/2012/03/trayvon-martin-shooting-death-initial-police-reports.html I accurately report the documents showing him to be 6 feet' 170 lbs.

Actually, here Zorn accurately reports him to be "5-feet-11, 158 pounds, according to his autopsy". The incident report estimates Martin to be 6', 160 pounds, which is a pretty good estimate under the circumstances but still a good 10 pounds lighter than Zorn's "accurate" recitation. A survey of Zorn's comments on the case suggest that he is trying to be reasonably objective but that his sympathies lie with Zimmerman - and that he's inclined to spin up some pretty convoluted theories to try to turn Martin into an aggressor.¹

If Zorn has followed homicide cases, then he knows that if you're claiming to be innocent of homicide you have two basic defenses, the stronger of which is "That other guy did it," and the weaker, "Some other guy did it". When you're in a position where you can't deny committing the homicide, the defense presented is typically, "The victim deserved to die." That is why the Zimmerman team has made a long-term, concerted effort to attack Martin, to raise allegations they know or should know to be false, and bringing media attention or seeking to use at trial evidence that they know is irrelevant to the case but feeds into the anti-Martin narrative his supporters are so quick to grasp - and let's not forget, leaks and sensationalistic claims from both sides can be reasonably be assumed to be intended to influence the jury pool.

I think that Zorn's comments are better viewed as problems with the adversarial system of justice. The prosecutor in a homicide case will typically try to make the defendant look like a bad person and the victim look like an innocent, because that makes conviction more likely. The defense in a "he deserved to die" case will do the opposite because if the jury buys the notion that the defendant is basically a good person and the defendant deserved what was coming to him, the odds of acquittal go up. When you observe that the prosecutor is depicting the defendant as a bad guy who caused harm to a good person, you're doing little more than describing what happens in criminal cases hundreds of times each day, every day of the week.

The same holds true with regard to how the prosecutor explains away theories of innocence, or emphasizes evidence suggesting guilt. That's the prosecutor's job. It's the job of the defense to emphasize theories of innocence and evidence suggesting innocence. This is why we call the system "adversarial" - the two sides are working at opposite purposes. Although Zorn doesn't acknowledge this, you can only push your "explaining away" so far - if you overplay your hand you risk losing credibility with the jury. If the theory of guilt is far-fetched, the jury is much more likely to accept a theory of innocence that is plausible.

In terms of media attention, I suspect that the reason Zorn, a reporter, sees more miscarriages of justice in cases that draw media attention is because he's a member of the media. Certainly, there are some notable cases in which the police were in a hurry to close out a high profile case and a wrongful conviction followed, but those cases typically have what to me are the better predictors of when a case is more likely to result in wrongful conviction:

1. A heavy or exclusive reliance on eyewitness testimony; and

2. A statement that is contended by the police to be self-incriminating, or where the defendant actually falsely confesses to a crime.

I recall one case in which a defendant's "confession" turned out to be a remnant of an interrogation on a different case, with the police recording the defendant's statement on a recycled tape and, with no actual intent to do so, creating for lack of a better word a mix-tape in which the new interrogation ended right before the defendant in the prior case, whose voice was similar to the defendant's, admitted committing a crime. False confession cases can be difficult at times to wrap your head around - and the reasons that defendants give for having made what was later proved to be a false confession don't necessarily help. The defendant is often, but not always, of lesser education, possibly with a cognitive impairment.

Eyewitness testimony is dangerous because it is highly persuasive, but often contains errors and inaccuracies. If you ask enough questions, no matter how good the memory of the eyewitness, they'll get something wrong. The confidence of a witness is his or her testimony is not a good measure of its accuracy, but juries nonetheless tend to perceive confident, forceful testimony as being strong evidence.

Another factor in somee high profile wrongul conviction cases, is police, prosecutorial, or witness misconduct - including witholding evidence, destroying evidence, fabricating evidence, and coaching or influencing witnesses to give statements on matters for which the witness is uncertain or even where up to that point the witness has given contrary testimony that, if not changed, would be harmful to the prosecution.

On the whole, save for the intense publicity and public interest, the most unusual aspect of the case is that the defendant has managed to raise hundreds of thousands of dollars to cover his legal fees, expert witnesses, investigators, and the like. The publicity has been at worst a double-edged sword, and arguably has given Zimmerman advantages over a defendant who faces similar charges but makes "too much money" to qualify for a court-appointed lawyer, or lives in a jurisdiction where the compensation given to court-appointed lawyers is a bad joke.

I personally believe that the most important prosecution witnesses are going to be the forensic witnesses who describe the fatal gunshot wound and shooting angle, and George Zimmerman himself, through the statement he has made to the police and media about how the shooting occurred. I personally suspect that it is the forensic evidence coupled with those inconsistent statements, not the public reaction, that led to Zimmerman's being charged. To be specific, I suspect that the state's evidence will be that Zimmerman's stories are not only inconsistent, it's impossible to reconcile any of those stories with the angle of the gunshot wound. The question then becomes, will Zimmerman testify with yet another story - and open himself up to an interrogation that will flyspeck all of his prior statements and scrutinize his motivations - or will he instead try to overcome the contradictions through other witnesses and arguments presented by his lawyers.

Regrettably, only two people are in a position to tell us what actually happened that night, one of whom is dead and the other of whom will likely choose not to testify in his own defense.
--------------
1. In the comments, Zorn argues "Trayvon Martin could easily, at a leisurely walk, have covered the distance between the clubhouse, where he was first spotted, and Brandy Green's townhouse in the elapsed time from the beginning of Zimmerman's 911 call, when Zimmerman first spotted him, to the end of Zimmerman's 911 call", and accuses those who question his interpretation of the time line as engaging in speculation. He argues, "To make your story work, Martin has to simply linger there wondering if he's being followed (since I'm sure you don't want to accept the narrative in which doubles back to challenge Zimmerman)" - implying pretty strongly that, despite possession no evidence beyond speculation over the time line, he believes that last narrative. I would like to hear Zorn's explanation of how Martin would have known, after leaving the roadway and walking down the sidewalk between the houses, that Zimmerman would park, leave his vehicle and continue to either follow or appear to follow him into the area where the shooting occurred.

Some Things, You Shouldn't Have to Explain

Following up on the much-maligned essay by Gene Marks, Megan McArdle offers what I think is a reasonable interpretation of Marks' thesis: it's much harder than most people think to transition from being poor to being middle class. McArdle tends to oversimplify, but at the same time she acknowledges the general reality of the situation:

[Poor people] could be middle class if they made a series of hard choices. But those choices are really hard - much harder than they are for the people who are already there. Chances are, you would also have a hard time making those choices.

Some people find it very easy to point to a child in poverty and say, "If you acted like a middle class kid you would escape poverty," never mind your parents, peers, schools, support system.... Marks simply reveals that when those who have enjoyed lives of comparable privilege speak of "acting middle class" they are describing taking a level of action and initiative at least an order of magnitude greater than what a typical middle class child must do to stay in the middle class - in simple terms, struggling against the odds vs. coasting.

I had a client many years ago, abandoned to his elderly grandmother's care by his drug addict parents, caught at the age of seventeen selling crack, and in court as an adult (at 17 you're an adult in Michigan for criminal prosecution). The image that sticks with me is when, at his sentencing, I described to the court why I believed probation was appropriate and referred to him as intelligent. His reaction telegraphed that nobody had ever used that word to describe him. Out of control, troublemaker, and the like, sure. But intelligent? Nobody noticed. Nobody was looking.

Is Cheney Mason for Real?

Although I recognize that some will assert that you can't argue with success, I commented on the defense in the Casey Anthony trial,

If Anthony's attorney believed his client to be innocent and yet deliberately promised to the jury that he would offer evidence he had no intention of introducing, victory or not, I wouldn't hire him to walk my dog.

A member of the defense team argues that she did in fact believe Anthony to be innocent, although he does not offer to clarify which of Anthony's many stories he believes.

Appearing on NBC’s “Today” show on Monday, the attorney told Savannah Guthrie, “I do believe her story. I believed it from the first time I met her which was several weeks before I was formally on the team.

He denies that the opening statement contained promises that the defense had no intention of fulfilling - their client surprised them by not testifying.

And in other unexpected turns, Casey had also decided at the last minute to not testify during the trial. Mason said that it wasn’t because she was afraid to take the stand, however. She had just chosen not to, and was the only person who would ever know why.

I would be more impressed if Mason had argued that the defense knew that Anthony was not going to testify, although again that would cast doubt on the promises made in the opening statement, given that there was no indication that they built their defense with the expectation that she would testify, given that between her demeanor and her inability to open her mouth without lying she would have almost certainly buried herself within minutes, and given that it doesn't speak highly of either their trial preparation or client control that this was a surprise. (Really, the defense wanted to put her on the stand to explain that she kept garbage in her trunk for so long that her car smelled like it had a rotting corpse in the trunk, coincidentally at the time her child was missing, and that she abandoned her car at an airport because it ran out of gas? No freakin' way did they believe she was going to testify.)

Though nobody coached her on her mannerisms before the court, Mason did say that he and his lawyers did try to keep her emotions down, which he explained was “pretty hard to do when family [testified] against her and people [were] calling for [her] blood like a lynch mob.”

Nobody talked to the client about how to comport herself during court? For a first degree murder trial with a possibility of the death penalty? Seriously? Also, given that Anthony's mother gave testimony that, in my opinion, wasn't even close to credible about searching for "chlorophyll" and accidentally coming up with "chloroform", it seems she was trying to help Anthony. Did her parents get a bit angry with her when she tried to blame her partying after the death of her daughter on her supposedly being molested by her father? Or that her defense accused both of them of being somehow involved in the cover-up of her child's death and disappearance? I expect so - but are we to believe that, also, was a surprise to the defense team?

I accept this:

Mason continued to defend his client and stated that though there was no question she told a lot of stories to a lot of people, it was from a protective mechanism and not out of guilt of murder.

Whatever happened to the child, and whatever her role in the death, I have never sensed that Anthony has suffered even a moment of guilt. You will note that every single one of her lies was directional - minimizing her role in the disappearance and death, explaining away her inconsistent behaviors, attempting to blame others for the child's death and the dumping of the body in the woods and, if that failed, attempting to play "I was molested" as a trump card. As for "Casey’s demeanor and expressions, which were cold one second and crying the next," I didn't follow the trial but what I saw suggested that she became very upset when she started to feel sorry for herself. If sociopathy can be described as a "protective mechanism", I'll concur with Mason that Casey Anthony appears to have a "protective mechanism" in spades.

Given that Mason is claiming to believe that his client was ready and able to testify, implicitly with satisfactory explanations for her countless lies, and that she's now protected from retrial, I wonder when we can expect all of that information in some form of public statement that will make us recognize that this was all one big misunderstanding. No, actually I don't.

They Say It's Best to Keep Your Mouth Shut...

... And merely be thought a fool. But I guess there's too much money in playing the fool for a TV camera for Nancy Grace to keep her "insights" to herself.

Are there any Nancy Grace fans reading this? What do you see in her?

Can Prosecutors Appeal an Acquittal

I see that a great many people visiting this blog are wondering whether the prosecutor can appeal Casey Anthony's acquittal on murder and manslaughter charges. No, they cannot. The Fifth Amendment to the U.S. Constitution provides a defendant with a range of protections, including the right to remain silent and protection against being retried following acquittal - protection against "double jeopardy":

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In rare cases, a defendant acquitted in state court might be subject to charges in federal court, typically on civil rights charges. That is most likely to happen when the defendant is a state actor, such as a police officer who has been acquitted in state court of a serious crime against a criminal suspect. I do not personally see a basis for bringing federal charges in this case, nor do I expect a federal prosecutor to be interested in attempting a new prosecution.

Casey Anthony Acquitted - Should it Be a Surprise?

I have not followed the Casey Anthony murder trial, although I suspect you would have to live in a hermitage to have avoided picking up some of the details. I read a summary of the case on CNN today, and... wow. It's easy to see why somebody would be surprised by the acquittal. But should you be shocked? Outraged?

E.D. Kain provides a perspective on the case, comparing the acquittal to various wrongful conviction cases. Wrongful conviction cases are not usually given much media attention for a number of reasons, not the least of which is the fact that the defendants are rarely either photogenic or "nice people". Chalk it up to human nature - it's easy to rationalize away that type of failure of the system with some combination of, "It couldn't happen to me," and "A guy like that deserved some time in prison, anyway." It's a rare wrongful conviction case that forces people to directly confront the fact that, yes, it can happen to you and nobody deserves prison time for a crime they did not commit - and it seems that people would rather have those cases be over in a blink, "Justice was finally served, on to the next story," as opposed to dwelling on their uncomfortable implications.

I mentioned recently that the Anthony case reminds me of a similar missing child case from the Detroit area - never prosecuted. If a body were found the prosecutor would likely face similar issues to the Anthony case - a skeleton, no clear evidence of cause of death, not much to point to except the mother's history of lies. You and I don't have to give the defendant either a presumption of innocence or the benefit of the Fifth Amendment: we can hold their silence against them. It's not unreasonable for us, looking at the same evidence as the jury, to conclude "It's pretty much inescapable that she did it," but the jury has a harder job - finding guilt beyond a reasonable doubt.

One of the difficult calls for the prosecutor in a case like this is how to charge the defendant: You believe it's a first degree murder case, but do you go for the maximum charge and potentially complicate your case or do you go for a lesser charge and ensure that the defendant will get off with a lesser conviction and penalty than you believe she deserves. The Anthony case specifically reminds me of a trial an appellate defender once described to me, reversed on appeal, in which a man was convicted of "negligent homicide" in the disappearance and presumed death of his girlfriend. The only fact that could be established was that he was the last person who could be confirmed to have seen his girlfriend alive. The prosecutor's closing argument admitted that nobody knew what happened, but the prosecutor argued that based upon what was known of the defendant and of similar cases it could be inferred that the victim died cruelly, that she suffered enormously, etc. The jury obviously inferred that the defendant killed her, but with absolutely no evidence of how they came back with a verdict that made no sense, and was not supported by even the prosecutor's argument, hence the reversal.

This case, similarly, reminds me of the first Blogjevich trial and how, following the presentation of a relatively complicated case, the jury hung on most major charges. The retrial presented a simpler, more streamlined case and resulted in conviction. There won't be a retrial in the Anthony case, but it could be that had the prosecutor settled for treating the case as a culpable death resulting from child abuse they could have presented a more direct, less fanciful case and by honing in on how the evidence could not be explained away by accident they might have achieved a conviction. But by making the case about a mother who intentionally killed a child in order to get "freedom", instead of a perhaps more plausible case of a mother who was using inappropriate, abusive means to keep her child quiet (duct tape over the mouth, "where can I get some chloroform"), they allowed the defense too much latitude to explain away the incriminating details or to emphasize how they did not fit with the prosecution's express theory.

I very much question the defense strategy of either promising to present evidence to the jury that they were unsure they would in fact be offering, or outright lying to the jury in order to get certain arguments before the jurors that they knew would not come into evidence. Many lawyers take the position that you should never promise to prove something to the jury unless you know you can deliver. It's such a role of the dice that it's difficult for me to conceive of a lawyer intentionally following this strategy unless he knew the defendant to be guilty. (Why is it, I rhetorically wonder, that lawyers are so rarely picked for juries.) If Anthony's attorney believed his client to be innocent and yet deliberately promised to the jury that he would offer evidence he had no intention of introducing, victory or not, I wouldn't hire him to walk my dog.

One of the most absurd defenses of Anthony's actions after her daughter's disappearance (which Anthony would have known was in fact her child's death) is offered by Dr. Keith Ablow, resident armchair analyst for Fox News.

Some emotionally vulnerable people can experience mania—the “high” phase of bipolar disorder, essentially the opposite of depression—in the setting of unthinkable trauma or loss.

Even if you despise Casey Anthony, you have to admit that the death of her daughter (if she did not kill her) would qualify as such a trauma or loss. Symptoms of mania could then ensue, including: overspending, hypersexual behavior, sleeplessness and a sense of euphoria (which would be seen in photographs as seeming joy).

No, seriously, the explanation offered by the defense for Anthony's living the high life was that she had supposedly been sexually abused as a child. I expect that Anthony was examined by any number of forensic psychologists, and that the defense (and prosecution) would have been presenting their testimony at the death penalty phase had Anthony been convicted of capital murder. Had there been anything to the notion that she snapped into a manic phase, we would have heard about it. Ablow states, "I’m not saying that anything really happened this way, but it could have. Really." Maybe it could have with somebody else; just not with Anthony.

Anthony can now safely tell the world what happened - she can't be retried on the homicide or child abuse charges. It is my expectation that she won't, for the same reason that she chose not to testify in her own defense: her story won't hold up to even casual cross-examination.

I have spoken with a number of people who followed the trial closely and not one has said that she would have brought back a verdict for first degree murder. The typically thought process is, "I think she did something that accidentally killed the child...." And without the jury's obligation to presume innocence, it's more than fair to infer from that feeling and from the evidence that Anthony did kill her child. I believe the evidence was ample to support the prosecutor's case, such that even had the jury returned a verdict of first degree murder the evidence would have been found sufficient on appeal. But that's different from stating that the jury should have convicted. They're supposed to give the defendant the benefit of the ambiguities in the evidence, even if those ambiguities exist only because of the defendant's silence.

It's unfortunate that this case is more likely to be perceived as a failure of trial by jury rather than a success, as once you get past any perception of "sleazy lawyers" or "unsympathetic defendants" the fact is that our system is designed to err in favor of acquittal. The jury is to find proof beyond a reasonable doubt, something that's hard to quantify but is often expressed in terms of, "It's better that ten guilty men should escape than that one innocent man be condemned." I know that I would be frustrated if asked to serve as a juror in a case in which the only thing keeping me from knowing what happened was the defendant's tapestry of lies, compounded by her subsequent exercise of her right to remain silent. I can't mind-read the jury, but I expect that if they were to give statements they would acknowledge that frustration, but attest that it was their job to put aside those feelings and focus on the evidence admitted at trial.

Update: Jeralyn Meritt at TalkLeft does a nice job explaining the wide range of meanings that can be derived from a "not guilty" verdict.

Criminal trials should not be equated with a search for the truth. They are merely a process for the testing of evidence: Can the state prove the charges against a defendant by proof beyond a reasonable doubt?

You Know What We Need? A Bigger Trial Tax!

The "trial tax" is a term given by lawyers to the tendency of courts to impose higher sentences on defendants who are convicted after trial as compared to those who plead guilty. There are many rationalizations for the trial tax - the guy who pleads guilty shows remorse, the guy who presents a trumped up defense or gives false or misleading testimony is wasting the time and resources of the state, etc. But there is an inherent tension between a defendant's right to be presumed guilty and increasing the defendant's penalty if he makes the state prove its case. The worst aspect of the trial tax is not that a guilty defendant gets a longer sentence, but that an innocent defendant may be forced to choose between a light sentence or probation if he accepts a guilty plea, or going to prison if he's convicted.

Deborah Orr is outraged that some defendants not only present false defenses at trial, but can display the same type of sociopathy or sadism they demonstrate in their crimes as part of their defense. She's from England, so she's focusing on some of the outrageous accusations the murderer of a thirteen-year-old has directed at some of the witnesses, including the child's father. But the same thing happens here. Orr's solution seems to lie somewhere between imposing a severe trial tax and (although she claims otherwise) weakening the presumption of innocence:

I am not suggesting changes in the law, or for an eroding of the rights of defendants in court. I am suggesting a change of emphasis in sentencing, whereby defendants no longer have nothing to lose from telling lies on a slender punt and absolutely everything to gain if their lies succeed. Clarke's proposed reforms invoked the carrot. Their flaw was that even a person who had no chance of being found not guilty would be further rewarded for pleading guilty. He needs to take another look at his ideas, and invert them. He needs to invoke the stick. Plead not guilty, and risk exposure as a vexatious liar, if you dare. No parole, no privileges, no quarter, just a straight, cold, maximum sentence, if you really think that you want to mess everyone around.

But the thing is, most defendants are guilty and the entire concept of plea bargaining centers around a quid pro quo - the guilty defendant does benefit from pleading guilty. At risk of projecting the U.S. system onto Britain, I expect that the child murderer whose antics so offend Orr is in the same position as a child murderer in a typical U.S. court - he is looking at the same outcome whether he pleads guilty or not guilty, and thus has nothing to lose. Will you inspire him to act more ethically in his defense if you threaten him with serving "life plus ten years" in prison as opposed to simply "life"? Obviously not.

But you can rest assured that the prosecutor who is looking at a difficult case will be warning the defendant, "If you do not take this plea bargain, after you're convicted I will be asking the court to find that you lied, and to give you a sentence with 'No parole, no privileges, no quarter, just a straight, cold, maximum sentence'". Such an outcome would come pretty close to a "gimme", given that the defendant's conviction would inevitably mean that his defense was not believed.

Orr's column reflects a layperson's frustration with the rules of evidence, specifically hearsay rules, and a remarkable lack of insight into how those rules work. She describes how, many years ago, her four-year-old let a woman into their home and, when the woman was prosecuted for burglary, she was told that she could not repeat her child's statements to her on the basis that they were hearsay:

The burglar had knocked on our door, and been let in by my four-year-old son, while I was feeding and settling his three-month-old brother. I knew nothing of this until I found my son sitting on the front doorstep, with the door open. He told me that he had answered the door – which at that time had clear glass panels – to "the lady in the red coat". Where was this lady now? She had gone upstairs, "to see Dad"....

I was amazed when my burglar entered a "not guilty" plea. I was even more amazed when, a few minutes before the trial began, six months after the incident, the Crown Prosecution Service told me I could not mention anything my son had said because it was hearsay evidence. That ripped my truthful narrative to shreds. Thus restricted, I was just not able to credibly explain what had happened.

In simple terms, a hearsay statement is an out-of-court statement being offered as proof of the matter asserted. In our adversarial system each side is supposed to have the opportunity to challenge the other side's evidence and cross-examine witnesses, an ability that is lost if hearsay evidence is allowed without discrimination - but there are many exceptions and exclusions to the hearsay rule, such that hearsay statements often do end up introduced into evidence, and sometimes the statement will be admitted for reasons unrelated to its truth. I expect that most lawyers will infer that the defense brought a motion in limine asking that the child's statements be excluded as hearsay, anticipating that the child would not be presented as a witness, and that at the time the trial started the court had put limits on whether and when the hearsay statements could be introduced. Orr continues,

The defence line was that this woman had found my son in the street and had been searching for me in the house, to deliver him to safety. As a mother herself, she had been appalled to find him wandering in the road, in danger.

But her good deed had been totally misread, and had landed her in this amazingly terrible mess. Her brief went further in her summing up. Citing the James Bulger case, she contended that people such as the defendant were afraid to intervene and save children because people such as me distorted their kind motives so grossly. People such as me, she argued, were responsible for the "walk on by" society. People such as me, she spat out contemptuously, would rather see an innocent woman go to prison than admit that they only saw the bad in people.

The trial took five days, about 20 minutes of which were taken up by the jury's deliberations. Largely, I think, because I had strongly insisted on presenting the hearsay evidence, despite the consequences and against the advice of the CPS,¹ and the jury had believed me.

What nonsense. Had Orr presented testimony in violation of the court's ruling she would have been admonished by the court and, at a minimum, that portion of her testimony would have been stricken from the record with the jury admonished to give it no weight. What happened was either that under the court's pretrial ruling the defendant's use of this particular defense opened the door to the introduction of the child's statement, or that the prosecutor successfully convinced the court to reverse its prior ruling based upon the content of the defense case. This is not an instance of a witness bravely staring down the court and forcing inadmissible evidence into the record, resulting in the defendant's conviction; does Orr truly believe that's what happened?

Here's another little secret of the system: prosecution witnesses often lie in court, and rarely face a consequence for lying. Would Orr balance out her trial tax by imposing severe consequences on prosecutors and prosecution witnesses whose arguments and testimony are rejected by the jury, or are later proved to be reckless, deliberately misleading, or presented with full knowledge of their falsity? As she suggests for defendants, should willful falsity be effectively presumed by a jury's rejection of the prosecution's case?

------------
1. I suspect that advice was along the lines of, "If you introduce the child's statements the defense may try to call him as a witness." But ultimately that, also, wouldn't have been Orr's call.

Pull The Other One

Would you believe this if you were a juror?

"I searched for chloroform," said Cindy Anthony, as jurors leaned forward, riveted, in the Orlando courtroom.

"I was searching for 'chlorophyll' because I was worried that it might affect my dogs," Cindy said. "I was worried about them eating bamboo."

I guess it's more plausible than attributing the search on a two-year-old, but really. I guess the thought process is, "My dogs were eating bamboo, I realized that bamboo contains chlorophyll, I wanted to know if chlorophyll is harmful to dogs, so I searched for 'chlorophyll' - but I didn't know how it was spelled so I ended up searching for 'chloroform'."

I suspect that most people searching for information on the possible consequences to their dogs from eating grass search for such terms as "dogs eating bamboo", and that most people who are looking for the effect of chlorophyll on dogs would search for something like "chlorophyll dogs", perhaps ending up with a twisted search term that would be of concern to PETA but not of much relevance in a criminal trial.

What It Takes To Become a Prison Reform Advocate

Conrad Black and Randall "Duke" Cunningham went to prison and, surprisingly, didn't like it very much. Cunningham:

“The USA has more prisoners than any other nation, including Russian & China,” he writes. “The US Attorneys win 98% of their cases and if you do not plead in which 80-90% is not true they threaten your wife children etc with prison time.”

Cunningham’s numbers are slightly off. The U.S. Department of Justice’s 2009 statistics show that federal prosecutors won 94.1 percent of cases. In 96 percent of those convictions, the defendant pleaded guilty before trial. The difference doesn’t affect Cunningham’s point.

Black:

Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases. There, at Coleman, I had seen the courage of self-help, the pathos of broken men, the drawn faces of the hopeless, the glazed expression of the heavily medicated, (90% of Americans judged to require confinement for psychiatric reasons are in the prison system), and the nonchalance of those who find prison a comfortable welfare system compared to the skid row that was their former milieu.

I can cut Black some slack, given that he's not from this country, although surely there was some coverage of the issues in some of the papers he controlled - and I venture that his editorial boards would have been pretty unanimous in opposing the reforms he now supports, if for no other reason than because it would require a tax increase.

On the other hand, Duke was surprised by the number of prisoners in this country, the high conviction rates achieved by U.S. Attorneys Offices, or the strong-arm tactics used by some of those offices to convince defendants to plead guilty? This is a guy who represents California, a state that's bankrupting itself in no small part through the cost of its prison system, infamous for its "three strikes" laws? While granting that it appears he's no rocket scientist, I suspect he had a pretty good idea what was up, but doesn't want to admit that he used to support the "tough on crime" rhetoric, legislation and policies that led to the outcome he describes.

Black also writes,

And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.

It's recognized among defense lawyers that, when a client goes to prison, the defense lawyer gets the blame - the other people involved were just "doing their jobs". That said, compared to typical state systems, federal defender's offices are well-funded and court-appointed lawyers who accept federal cases are reasonably compensated. If by being "paid for the number of clients they represent", the issue is that court-appointed lawyers are paid by the hour, yes, that means the more you work the more you earn. But that doesn't mean you're underserving any given client. A flat fee system, in my experience, is worse for the client, and perhaps Black was hearing horror stories from those previously convicted in states such as Mississippi where court-appointed lawyers are paid a pittance of a fixed fee for any case they take, creating a strong financial incentive to take a lot of appointments and bargain the defendants out as quickly as possible. A horror story from Washington State:

On May 14, 2010, the Wenatchee World reported that a Chelan County public defender has agreed to pay a $2.9 million dollar settlement to a former client for admittedly providing ineffective assistance of counsel that led to the client’s wrongful imprisonment in a sex abuse scandal. The state of Washington requires its counties to shoulder the vast majority of funding and administration of the right to counsel. Chelan County (population 72,372) does not have access to significant resources and chose to employ flat-fee contracting in which a law firm was expected to provide representation in an unlimited number of cases for a single lump sum. Over two-thirds of Washington counties employ a similar model. Experts retained by the former client in the civil lawsuit noted that the public defender attorney was just out of law school, unqualified, carried too many cases, had no training, and was left unsupervised to learn as he goes.

Seventeen of the 27 people convicted in the sex-abuse investigation were represented by private attorneys and in every one of those cases the charges were thrown out or overturned on appeal -- only defendants represented by the flat-fee contract defenders were convicted.

If you pay lawyers only when a criminal defendant is acquitted, nobody is going to sign up. Let's be honest here: most criminal defendants are guilty of something, even if not the exact crime charged, and most are very interested in working out a plea bargain. There are innocent people in prison, and people who are convicted of crimes carrying sentences that are grossly disproportionate to their offenses (Black identifies the now partially corrected sentencing disparity for crack vs. powder cocaine) or to their role in an offense, but if you look past the sad tales told to credulous men who are used to extraordinary wealth and privilege, you'll find that they're a distinct minority.

That is not intended as a defense of the funding of indigent defense which, on the whole, is inadequate - and gets worse in complex cases in which a defendant must beg a court to provide money for expert witnesses or investigators, requests in state courts typically being denied or resulting in woefully insufficient allotments of money.

If Duke wants to admit that the criminal justice system he helped create as a Member of Congress is unduly harsh and unfair to innocent defendants, and to advocate for reform of the system, all the more power to him. Similarly, I'm all for Black calling for reforms, adequate funding of public defenders and court-appointed lawyers, and for supporting the mentally ill so that they don't end up in prison in lieu of getting treatment or because they find it preferable to life on the streets.

Prosecutorial Misconduct

Well, at least Alaska got a different Senator....

But there's a real story here, and not just about Ted Stevens. It's exceptional for a defendant to have the type of resources that Ted Stevens could muster against a U.S. Attorney's Office. But for the transition to the Obama Administration, I doubt that the Department of Justice would be admitting the extent and gravity of the misconduct or dropping the charges - just as before, it would be "all that matters is winning, full speed ahead".

There are a couple of things that make the Stevens case unusual. First, a U.S. Attorneys Office has such phenomenal resources, it's a bit surprising that the involved prosecutors felt the need to do this. Second, given the resources possessed by the defense, it's amazing that they thought they could get away with such extraordinary misconduct. I suspect, unfortunately, this is an example of rot that set in at the highest levels of the Bush Administration - rot beginning at the Oval Office - politicizing everything, focusing on results over means, throwing away any sense of obligation to observe ethical standards or even follow the law, putting loyalty above competence....

But the thing is, it's not particularly unusual for a police officer or prosecutor to decide that a defendant is guilty, and to "help along" the prosecution by playing games with the evidence, influencing witnesses, lying on the witness stand.... "He's guilty, right? So it's not really wrong to make sure he's convicted." In many cases the defense may have strong grounds to suspect misconduct, but won't be able to prove it. While some prosecutors have a very strong sense of ethics and commitment to doing justice, there are some whose primary goal is to get as many convictions as possible no matter what the facts. And there are some who have internalized the notion that everybody they prosecute is guilty - and obviously so - because they don't charge innocent people. When you're convinced you're advancing justice, it can become all too easy to turn a blind eye.

Stevens was convicted. You can say "He belongs in jail." You can attempt to justify the perversion of justice by the prosecutors and officers involved in the misconduct. But if you think he's guilty, think about this: It's that misconduct that is keeping him out of prison. That's not normally the way it works - normally, this type of misconduct is vastly more likely to land an innocent person in prison than to keep a guilty person out.

Nice Ethics....

What am I supposed to think about this statement attributed to Alan Dershowitz?

I have been in touch with Claus repeatedly. I have not been in touch with OJ Simpson since his trial.

I'm sure it hurts OJ to have been dropped from the Christmas Card list but, whether or not he paid his bill,¹ I don't think his former lawyer should be publicly insinuating that he was guilty. Anybody else, opine away, but not the defense attorney.
_______________
1. And we know that Dershowitz and the rest of OJ's legal team "got paid".

Provocation as a Defense to Murder

Apparently, in the U.K. it's becoming more difficult to raise infidelity as a basis to diminish a murder charge.

This reminds me of a story from law school... that might put you to sleep if I shared enough information for you to understand it. But it was funny if you were there.

Should Prosecutors Defer To A Jury's Acquittal

Over at TalkLeft, Jeralyn Merritt describes an acquittal in a rape case, adding,

Prosecutors are not respecting the jury's verdict. They spent a year preparing their case.

It should be no surprise that the prosecutors believed the defendant to be guilty. Although there have been some appalling exceptions, as a general rule prosecutors pursue cases only against people they believe to be guilty. (We'll leave discussions of overcharging for a different day.)

It's counterintuitive to expect a prosecutor, after an acquittal, to shug her shoulders and say, "Oh well, I guess I was wrong." If a prosecutor were to have more than a few moments of such ambivalence during the course of a career, I would be questioning the prosecutor's judgment when it comes to deciding which cases to prosecute. It's not a civil trial, after all, with a "preponderance of the evidence" standard. A prosecutor has to establish that a criminal defendant is guilty beyond a reasonable doubt. If the prosecutor is ambivalent about the evidence, the prosecutor should reconsider the decision to charge the defendant.

I know of cases where I was surprised by a defendant's conviction, given the flimsy weight of the evidence. I also know of cases where I was surprised by acquittal. I don't personally always agree with a jury's verdict, but at the same tie I have yet to encounter a jury, though, which did not take its role very seriously and try to follow the judge's instructions in deciding a case. By virtue of the standard of proof, there should be a lot more errors committed in favor of a defendant than in favor of the prosecution.

I recall a misdemeanor case where a jury came back shortly before 5:00 PM on a Friday and told the judge that they were hopelessly deadlocked. The judge told them that they would have to come back on Monday. They returned to the jury room, within ten minutes reached a verdict, and returned to the courtroom to acquit the defendant. The prosecutor expressed to me that he wished they had been willing to come back on Monday, but that given the circumstances they did the right thing - that if they were going to break their deadlock and come to a verdict within ten minutes, it would be quite worrisome if they had come back with a conviction. That's something apart from agreeing with the verdict, but it's a healthy perspective for a prosecutor to hold.

I believe Jeralyn's perspective is colored by the history of cases where prosecutors have held dogmatically to the view that a defendant is guilty, despite overwhelming evidence of innocence or a wrongful conviction. The tautological explanation is, "If he weren't guilty, I wouldn't have prosecuted him." Yet despite the cases where any reasonable neutral person looking at the situation would be stunned that the prosecutor was still asserting guilt, sometimes that actually is the case. Guilty people get acquitted and, as previosly noted, when our legal system works as designed that should occur significantly more frequently than wrongful conviction.

Perhaps prosecutors should reserve their comments after what they believe to be wrongful acquittals, rather than continuing to assert guilt to the media but, based on what is quoted in the newspaper article, at least they're not bashing the jury. I don't much appreciate the defense lawyer's assertion that the aquittal means "the alleged events never happened," as he knows that's a distortion.

(Not So) Superpredators Update

A year ago, I ranted a bit about stereotypes and the criminal justice system, and brought up a case of prejudice and police incompetence in Chicago:

A couple of years ago the Chicago Police were so quick to adopt the "super predator" stereotype with two African American boys, aged seven and eight, that they bungled the investigation and all-but-certainly let a convicted child molester get away with molesting and murdering an eleven-year-old girl.

Today, the City of Chicago reportedly settled a wrongful arrest lawsuit by one of the boys for $2 million dollars.

The boys, then 7 and 8, were charged with the girl's murder but were later cleared when DNA tests linked the case to Floyd Durr, a Chicago man who has since been convicted of sexual assaults on other young girls. Durr is still awaiting trial in Ryan's death, although he is in prison as a result of the other convictions.

I hope Durr's convictions relate to offenses committed before the 1998 murder of Ryan Harris, as but for the botched investigation focused on the two boys he would likely have been incarcerated for the murder before he got a chance to attack any more young girls. It was, after all, that focus that gave credence to Durr's "she was dead when I molested her" defense, and forestalled his prosecution all of these years.