Monday, September 8. 2008I will never forget that face?
Bill of Rights (From public domain.)
An armed robber bursts into the local bank with guns drawn. As a bank customer, do you stare at the robber's face to be able to describe the perpetrator to the police in the minutest detail, or do you try to protect yourself and those around you?
Unfortunately, countless innocent people are wrongfully convicted on the testimony of an eyewitness saying "I will never forget that face" when the witness never had a chance to process the image of the suspect's face and other features in the first place, when the visual and sound observation totaled only seconds at best, and when the witness's first priority was to emerge safely, rather than to be a photographic-memory witness. We already know through DNA evidence how often people are wrongfully convicted. Defendants have a Due Process right to call expert witnesses in identification and memory related thereto.
Particularly when discounting identification evidence will spell the difference between guilt and innocence, the defense must be permitted to present psychological experts in witness identification, because such cognition issues are uniquely within the ability of qualified experts to assist lay jurors in deciding a criminal defendants' liberty. However, on September 5, 2008, Maryland's intermediate appellate court gave trial judges wide leeway to slam the door on such expert testimony (leaving trial judges "sound discretion" to bar such witnesses), which is particularly ironic when considering such junk "expert" testimony allowed in evidence by the appellate courts in Maryland and elsewhere by so-called experts on whether a drug possessor intended to distribute the substance. Bomas v. Maryland, __ Md. App. _ (Sept. 5, 2008).
Concerning the defendant's efforts to present expert testimony, Bomas says in pertinent part:
"According to appellant, the court abused its discretion in assuming that potential deficiencies in the detective’s recollective capacities could be exposed through cross-examination. There is, he claims, a 'recent national trend in the law' that recognizes that 'reliance on . . . jurors’ common sense and understanding is an insufficient proxy for expert guidance as to the limits of eyewitnesses.' Appellant’s argument relies exclusively on decisions from other jurisdictions suggesting that studies have shown that juries give much weight to the memories of eyewitnesses, even when the memories have been shown to be unreliable. But the studies were not part of Dr. Schretlen’s testimony. He neither relied upon them
The above-reference studies not testified to by Bomas's expert are referenced in footnote 5 to the Bomas opinion as follows:
"Appellant relies on United States v. Brownlee, 454 F.3d 131 (3rd Cir. 2006), where the United States Court of Appeals for the Third Circuit reviewed a large amount of scholarly materials concerning the uncertainty of human memory and the reliability of eyewitness identifications. The Brownlee Court noted that 'while science has firmly established the "‘inherent unreliability of human perception and memory,'"' id. at 142 (quoting Rudolf Koch, Note, Process v. Outcome: The Proper Role of Corroborative Evidence in Due Process Analysis of Eyewitness Identification Testimony, 88 Cornell L.Rev. 1097, 1 099 n. 7 (2003)), 'this reality is outside ‘"the jury’s common knowledge,"’ and often contradicts jurors’ ‘"commonsense"’ understandings.' Id. (quoting Koch, 88 Cornell L. Rev. at 1105 n. 48). He also relies on United States v. Smithers, 212 F.3d 306 (6th Cir. 2000) ('Today, there is no question that many aspects of perception and memory are not within the common experience of most jurors, and in fact, many factors that affect memory are counter-intuitive.')." Bomas at n.5.
Hopefully cert. review to Maryland's highest court, the Court of Appeals, will be sought and obtained in Bomas.
How do your jurisdictions deal with allowing criminal defendants to call experts in witness identification and failed witness memory? Jon Katz Thursday, September 4. 2008Sami Al-Arian released to home detention.
Bill of Rights (From public domain.)
When Sami Al-Arian was terminated from his university professorship over six years ago (I am referenced in the news release from the Foundation for Individual Rights in Education) following threats of violence and donor pullouts to the University of South Florida, that was small potatoes compared to the five years of incarceration that followed with a subsequent indictment alleging his central role in terrorism.
What did the United States Justice Department have to show for its six-month criminal trial in 2005 that likely cost the prosecution millions of dollars? The jury refused to convict on most counts and hung on the remaining counts, followed by a plea bargain to lesser charges of conspiring to aid the Palestinian Islamic Jihad by helping get immigration relief for a relative allegedly linked to PIJ, and lying to a journalist concerning another person's PIJ links. Not satisfied to rest on the plea disposition in the Florida federal court, federal prosecutors kept Mr. Al-Arian jailed after his prison release date by indicting him for refusing to testify under immunity to a grand jury. However, the catch-22 of giving such testimony is that a perjury prosecution can be instituted by the same prosecutors who call the immunized witness before the grand jury, and such a prosecution can go forward even if no lies were told as long as the presiding judge for the perjury prosecution finds probable cause to believe perjury took place.
One of Mr. Al-Arian's legal team members is indefatigable blogger Jonathan Turley, who views the ongoing hounding of Mr. Al-Arian by the federal prosecutors as vindictive. To date, Professor Turley has not posted on the latest development this week in Mr. Al-Arian's case, so I will. For the first time in five years, Mr. Al-Arian is being released from jail into home detention. This is no small feat, because too often courts permit immigration detention, which is the most recent jailing suffered by Mr. Al-Arian. In this instance, his lawyers have been arguing that the current contempt prosecution against Mr. Al-Arian violates his plea agreement in Florida court, whereby Mr. Al-Arian contends that he should be permitted to be deported without delay. Apparently, the federal judge in the pending contempt case in Alexandria, Virginia, federal court pressed the federal authorities to justify holding Mr. Al-Arian in immigration detention together with prosecuting him for contempt, rather than just deporting him.
Home detention is no picnic, but is much more preferable than the five years Mr. Al-Arian spent jailed, never able to spend private time with his family. Moreover, this Washington Post report suggests that Mr. Al--Arian is being permitted some time on the streets, as well.
Here are some relevant links to Mr. Al-Arian's case: The pending contempt indictment against Mr. Al-Arian for refusing to testify before the grand jury; the contempt prosecution court docket; Mr. Al-Arian's habeas corpus petition in Alexandria federal court; the fed's reply to the habeas petition; my 2006 O'Reilly Factor interview opposing a retrial of Mr. Al-Arian; and my previous blogposts on Mr. Al-Arian.
Thanks to Mr. Al-Arian's current legal team of Jonathan Turley, William Olson, and Philip Meitl. Thanks, also, to his criminal trial team of Linda Moreno and William Moffitt, who spent an entire six months of their lives with Mr. Al-Arian in his Florida terrorism trial. Jon Katz Tuesday, September 2. 2008Monday, September 1. 2008How will Republicans and police protect demonstrators' rights?
Bill of Rights. (From the public domain.)
Now Republican leaders and Minneapolis/St. Paul government and law enforcement have their chance to show if they will do any better than the Democrats and Denver authorities to protect demonstrators' rights, during the Republican National Convention.
The Ramsey County sheriff seems to be trying to say that the recent raid(s) on alleged anarchists is isolated to the alleged anarchists. Hopefully that is true, but that sounds questionable and still does not satisfactorily answer why law enforcement apparently encroached on the alleged anarchists' First Amendment rights in the process. Here is some information and opinion about the raid(s) and its aftermath:
- For Labor Day, a protest march was planned, with organizers expecting tens of thousands of participants.
- TwinCities.com reports: "The American Civil Liberties Union and the National Lawyers Guild filed motions in Ramsey and Hennepin district courts Sunday, seeking the quick return of some of the 'First Amendment-protected literature' that had been seized, said Chuck Samuelson, ACLU of Minnesota executive director. There were fliers and banners taken in the searches, mostly from a St. Paul center used by a number of groups, that people had planned to hand out or display at today's march, Samuelson said. They aren't asking for the return of 'any of the materials that are related to the prosecution of the crimes for which people were arrested,' Samuelson said."
- TwinCities.com further reports on the National Lawyers Guild's insistence that the seized items from the alleged anarchists are ordinary household items, and disturbing confirmation by law enforcement itself about blackouts on letting people record searches: "The National Lawyers Guild has said the confiscated materials were common household items and that the RNC Welcoming Committee's Web site has never stated or discussed plans for violence during the RNC, including against law enforcement.
"Also Sunday, Communities United Against Police Brutality President Michelle Gross released video [see the video here] of the first seven and a half minutes of Friday's raid. She was at the center and was ordered to the ground with the other people inside. She said sheriff's deputies turned off her video camera. 'We document these incidents and then to have them pick up and then turn off the video camera ... is grotesque,' Gross said. 'More than that, though, this was only the latest in a salvo of several incidents involving police attempting to block people from telling the story of what they're doing.' Her organization and the National Lawyers Guild filed a motion Saturday in Hennepin County District Court asking a judge to stop police from seizing video equipment and cellular phones used to document officers' conduct and cited other examples of it happening. [Ramsey County Sheriff Bob] Fletcher said Sunday that deputies would have turned off Gross' camera because law enforcement has 'the right to control the scene of anybody who is inside a search warrant. If she's out in the public, it's a different thing; but she was inside the scene.'"
- Thanks to the above-discussed Michelle Gross for very calmly but insistently giving the police a good reason to permit her to keep her video camera running. Here is the video portion that ran, before the police cut off further video recordings.
- Minnesota National Lawyer Guild chapter president Bruce Nestor was present during the execution of two search warrants. He said: “Police seized political literature, cellphones, computers, cameras, personal diaries, and many common household items such as paint, rope, and roofing nails. These items are present in almost any home in south Minneapolis and are not evidence of a crime ... Seizing boxes of political literature shows the motive of these raids was political. Sheriff Fletcher has staged a publicity stunt, violated constitutional rights, and misrepresented what was seized during the raids."
- Are the police raids limited to the alleged anarchists (by the way, anarchists do not shed their Constitutional rights by being anarchists, and the Constitution cannot outlaw people from being anarchists)? If so, why did the police raid a home housing members of a group called I-Witness Video? The video here shows the Ramsey County sheriff followed by a member of I-Witness Video.
- The apparently left/"progressive"-leaning Twin Cities Daily Planet further addresses conflicting accounts between law enforcement and activists about the police home searches.
- Orin Kerr at Volokh weighs in on the matter, with a rather "law and order" bent, with many commenters giving a wide range of opinions.
In any event, people can debate the real facts of the recent Minneapolis raids. This should not obscure the need to watch closely what the police are doing to demonstrators' rights, and for everyone to insist not only on preserving their Constitutional rights, but also to protect robust and extensive rights peacefully to demonstrate, because courts often give overly-crabbed interpretations of First Amendment free speech rights. Jon KatzThursday, August 28. 2008When Miranda does and does not come to the rescue.
Bill of Rights. (From the public domain.)
Many of my clients complain that the police never read them their rights. I wish the police always had that obligation when questioning a person, but that is not the situation. Generally, the police must advise a suspect of his or her Miranda rights if the suspect is in custody; if not, the failure to so advise is grounds for suppressing the defendant's statements to the police.
Following are a few key court opinions that address when the police do and do not need to advise suspects of their Miranda rights, and how those rights need to be asserted
- Once Miranda rights are invoked, they remain invoked until the in-custody suspect initiates communication. Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981). This is even the situation when the suspect is a convict who demands an attorney's presence during questioning, the case goes cold, and police return to question the suspect in the same prison system from which s/he has never been released. Shatzer v. Maryland, __ Md. _ (Aug. 26, 2008).
- The trial judge in the Lee Boyd Malvo sniper prosecution initiated in Fairfax County, Virginia, ruled that the Sixth Amendment right to counsel is offense-specific, and cannot be invoked by one's attorney for future criminal charges that have not yet been filed. For that reason alone, said Virginia trial judge ruled that Mr. Malvo's Miranda rights in Virginia state court could not be asserted by his Maryland federal court-appointed lawyers. As the newspapers confirmed, Malvo wagged his tongue so much that he guaranteed himself the conviction and life without parole sentence that he received. Commonwealth of Virginia v. Malvo, 2003 Va. Cir. LEXIS 188, 63 Va. Cir. 22 (2003).
- Miranda rights need not be automatically given to those present in a house being searched pursuant to a warrant. The Ninth Circuit recently said that "several factors are relevant to whether the circumstances of [the defendant's] interrogation effected a police dominated atmosphere: (1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made." U.S. v. Craighead, __ F.3d _ (9th Cir. Aug. 21, 2008).
Craighead further observed: "If a reasonable person is interrogated inside his own home and is told he is 'free o leave,' where will he go? The library? The police station? He is already in the most constitutionally protected place on earth. An interrogation conducted within the suspect’s home is not per se custodial. See Beckwith v. United States, 425 U.S. 341, 342-43, 347 (1976). On the contrary, courts have generally been much less likely to find that an interrogation in the suspect’s home was custodial in nature. United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994); 2 Wayne R. LaFave, Criminal Procedure § 6.6(e) (3d ed. 2007)." . U.S. v. Craighead, __ F.3d _. Thanks to Scott Greenfield for discussing this Craighead case.
- Unless a state's constitution is more protective than the federal Constitution, a police officer's questioning after a traffic violation stop generally does not, at the early stages, trigger a need to give Miranda warnings, because the stop and initial questioning, by themselves, do not put the suspect in custody that would require the Miranda warnings. Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984); McAvoy v. State, 314 Md. 509, 551 A.2d 875 (1989).
What to do with the many times courts do not require Miranda rights? For starters, how about if each of us puts slogans on our cars, t-shirts and front doors proclaiming "Say no to police questioning and police searches." No means no. Jon KatzWednesday, August 27. 2008Keep the spotlight on convention protestors' rights.
Bill of Rights. (From the public domain.)
Today's blogpost follows up on yesterday's entry insisting on protecting demonstrators' rights at the Democratic and Republican presidential conventions. Here are some useful links for assessing and responding to the protest issue in Denver:
- Added to my blogroll is this admittedly biased blog devoted to coverage of demonstrations and the police at the major party presidential conventions. Thanks to TalkLeft for bringing it to my attention.
- Here is a gruesome place set up for police to process arrested demonstrators. The ACLU blog discusses the detention center here.
- This YouTube page claims to show dozens of clips of recent demonstration activity and police response in Denver.
- Police public relations Groupthink gaffes often comes when they arrest reporters covering the action. Thanks to TalkLeft for covering this story.
- See Wolf Blitzer editorialize in favor of strong security while saying little to nothing about demonstrators' First Amendment and criminal defense rights, offset by his colleagues somewhat counterbalancing Blitzer, and including ominous footage from the 1968 Chicago Democratic Convention. Did 1968 failed Democratic presidential candidate Hubert Humphrey lift even a finger or a word to stop the police abuse inside and outside the Chicago convention site? If not, would he have reversed his narrow loss to Nixon had he stood up firmly, vocally, and effectively against the police abuse, thus perhaps obtaining more support from those who favored Robert Kennedy and Eugene McCarthy for president? Then again, the Vietnam War was then raging, which presented a huge challenge for him to obtain more than grudging support from strongly antiwar Democrats, while he served as Vice President under Johnson who kept the Big bloody Muddy going. Jon Katz
ADDENDUM: Scott Greenfield weighed in on the protestor matter on August 28. Monday, August 25. 2008When the prosecution indicts, and then indicts again.
Bill of Rights. (From the public domain.)
What should a criminal defense lawyer do when his or her client is caught with a bunch of drugs, unlawful weapons, and other contraband, but the prosecutor only files criminal charges on the drugs? On the one hand, resolving the drug case might make the other potential charges go away by keeping attention away from the other possible charges. On the other hand, the defendant might become the victim of successive indictments. A crystal ball would come in handy here.
A prosecutor is not automatically required by the Fifth Amendment's double jeopardy clause to indict all at once for crimes discovered on the same date against the same defendant arising from the same operative facts. Maryland's highest court made this clear today in reversing a trial judge's dismissal of a felony prosecution where the defendant had already been convicted on a drug charge relating to the same search that turned up the weapons that were later prosecuted in court and which became the subject of the trial court's reversal. Colonel Preston Long v. Maryland, __ Md. _ (Aug. 25, 2008).
This situation underlines the importance for criminal defense lawyers to decide whether to include or exclude uncharged criminal conduct in plea negotiations. On the one hand the uncharged conduct may go out of sight and out of mind if not mentioned. On the other hand, because the uncharged criminal conduct may not go away, the client needs to be involved in the decision whether to stay silent on the uncharged conduct in any guilty plea negotiations. Why, though, would a prosecutor remain silent about uncharged criminal conduct during guilty plea negotiations, as opposed to dangling them in front of the defense lawyer in an effort to try to persuade the defendant to enter a guilty plea? |
