Domestic Violence Called ‘Latest Battleground’ in Tribal Justice

Since the 2013 reauthorization of the Violence Against Women Act, non-Native Americans can be brought to tribal courts in domestic violence cases. But attorneys still face a minefield of jurisdictional issues, according to a study in the Winter 2018 issue of Criminal Justice.

Tribal courts are the “latest battleground” for reforming the way domestic violence cases are handled in Indian Country, a new study says.

The study, published in the Winter 2018 issue of Criminal Justice, examines the jurisdictional issues relating to criminal law and Native Americans in the aftermath of the 2013 reauthorization of the Violence Against Women Act (VAWA), specifically in the handling of domestic violence cases involving non-Native Americans in tribal courts.

The 2013 amended version of VAWA gives tribal courts enhanced jurisdiction over criminal cases brought by tribes against nonmembers, including non-Native Americans. Yet Congress’s recognition of tribal criminal jurisdiction is accompanied by limitations and sets obligations on tribes.

Tribes that want to make use of VAWA’s jurisdictional provisions may be required to amend tribal law, and hire new judges and public defenders.

The article summarizes the limitations of the enhanced jurisdiction under VAWA according to types of offenses, types of defendants, types of victims, and procedural safeguards. For instance, non-native defendants in VAWA cases can only be prosecuted in tribal cases if they have one of the three following connections to the tribe’s reservation or lands:

  • They reside in Indian Country;
  • They’re employed in Indian country; or
  • They are “the spouse, intimate partner, or dating partner of an Indian living in Indian country or a tribal member.”

In February 2013, the Justice Department announced a pilot program giving three tribes jurisdiction over non-Native Americans in domestic violence cases that occur on their reservations.

Since 2015, another ten tribes were granted the same special domestic violence jurisdiction over non-Native Americans in tribal territory. Beginning in February, 2014 the original three jurisdictions began to put into practice their new strengthened jurisdiction.

Most likely, all of the courts approved in the pilot program will commence prosecuting cases shortly, if they haven’t already.

“It is extremely likely that many more tribes will soon adopt the enhanced VAWA domestic violence jurisdiction,” the paper said.

“Attorneys wishing to appear in tribal courts must be admitted to practice in those courts, which have their own rules for admission.”

Some tribes have their own bar exams, including two tribes currently applying the special domestic violence jurisdiction. Attorneys who appear in tribal courts shouldn’t anticipate the applicable rules of evidence or civil procedure of state or federal courts to be applicable in tribal court. Tribal courts have their own rules, procedures, and practices.

The paper concludes with the author admonishing attorneys to thoroughly prepare in advance before entering tribal courts in any domestic violence case.

Sexual violence continues to be an epidemic in tribal territory and until it subsides Indian nations will act vigilantly to protect their people and work toward a solution, the study said.

“Attorneys, as always, will be on the frontlines,” it added.

The paper was written by James D. Diamond, director of the Tribal Justice Clinic and professor of practice at the University of Arizona James E. Rogers College of Law.

The complete study can be downloaded here.

This summary was prepared by TCR news intern John Ramsey. Readers’ comments are welcome.


Dr. Lisa Tseng: When Does a Physician Become a Drug Dealing Murderer?

     In California, as in most states, a cocaine dealer can be convicted of second-degree murder if a person he sold the drug to dies of an overdose. Such a conviction is based on what is referred to as the felony-murder doctrine which h…

     In California, as in most states, a cocaine dealer can be convicted of second-degree murder if a person he sold the drug to dies of an overdose. Such a conviction is based on what is referred to as the felony-murder doctrine which holds that if in the commission of a felony (selling cocaine) someone dies, the felon can be held criminally culpable for that death. The element of criminal intent applies to the commission of the felony, not the resultant death. In other words, it doesn't matter that the cocaine dealer didn't intend to kill one of his customers. It's still murder.

     Dr. Hsiu-Ying (Lisa) Tseng and her husband ran a storefront medical clinic in Rowland Heights, California, an unincorporated community of 50,000 in Los Angeles County's Gabriel Valley. The clinic had a reputation among prescription drug addicts as a place one could go to acquire prescriptions for drugs such as Xanax, Oxycodone, Methadone, Soma, and Vicodin. Dr. Tseng allegedly issued prescriptions for these pain and anti-anxiety drugs without asking too many questions, or requiring an acceptable medical reason.

     In 2010, reporters with the Los Angeles Times linked Dr. Tseng's drugs to eight overdose deaths. (Not all of the people who overdosed had acquired the prescriptions from the doctor, many of her patients had sold the drugs to others who overdosed on them.) According to the Times, Dr. Tseng, from 2007 through 2010, had written more than 27,000 prescriptions for pain and anti-anxiety medicine.

     In March 2012, state, county and federal narcotics officers arrested Dr. Tseng for murder in connection with the 2009 overdose deaths of three men in their twenties, all of whom had gotten prescription drugs at the Rowland Heights clinic. The authorities also charged Dr. Tseng with 20 felony counts of prescribing drugs to patients with no medical need for the medicine. (If this government-imposed standard were enforced strictly across the country, we'd need a dozen new prisons just for physicians and chiropractors. Street corner cocaine dealers would see their businesses shoot through the roof.) The 42-year-old doctor was placed in the Los Angeles County Jail under $3 million bond.

     There had only been a handful of prescription drug/felony-murder overdose prosecutions in the country. The Tseng case was the first of its kind in Los Angeles County. In June 2012, at a preliminary hearing before judge M. L. Villar de Longoria in a Los Angeles Superior Court to determine if the state had sufficient evidence to move the case to the trial phase, the assistant district attorney put on several witnesses. (In preliminary hearings to determine if the government has a prima facie case, there are no defense witnesses.)

     An undercover DEA agent took the stand and said he (or she) had been prescribed pain and anti-anxiety drugs without exhibiting any evidence of a physical injury. (What are the physical signs of chronic back pain?) Several family members of Tseng's patients testified that they had begged the doctor to quit issuing their addicted relatives prescription drugs. A representative of the Los Angeles Coroner's Office said he had warned Dr. Tseng that many of her patients were dying of prescription drug overdoses.

     On June 25, 2012, after three weeks of testimony, Judge Villar de Longoria ruled that Dr. Tseng could be held over for trial on the three murder charges. The judge, in justifying the ruling, told the defendant that she had "failed to heed repeated red flags" that her patients were drug addicts." (Since it's the role of a jury to make fact determinations like this, the judge's remarks were, in my opinion, inappropriate.)

     Assuming that Dr. Tseng had in fact intentionally or recklessly issued prescriptions to drug addicts, I'm not sure prosecuting her for second-degree murder was good jurisprudence in a country with millions of prescription drug junkies. Bartenders who serve alcoholics booze aren't prosecuted for murder when the drunks kill themselves in car wrecks. Gun dealers who sell firearms to people who use the weapons to blow their brains out aren't prosecuted for murder. (In the federal government's Fast and Furious operation, agents sold guns to drug dealers in Mexico who used them to kill dozens of people. One of the victims was an U.S. Border Patrol Agent. I don't think we'll see the U.S. Attorney General prosecute any federal employees for murder.)

     If convicted of three counts of murder because she prescribed pills to junkies who overdosed on the drugs, Dr. Tseng faced up to life in prison. This was at a time when residents of 18 states, including California, could legally buy "medical" marijuana.

     In October 2015, a jury in Los Angeles County Superior Court found Dr. Tseng guilty of second-degree murder. The judge, on February 5, 2016, sentenced Tseng to 30 years to life in prison.


What Were You Thinking? How Jurors Read Your Guilty Mind

A series of thought experiments by a team of law and neuroscience experts explore whether a defendant’s claim that he was unaware of committing an offense makes any difference to jurors. What they found, to be published in a forthcoming article for the Vanderbilt Law Review, isn’t good news for the accused.

Imagine you’re a member of a jury asked to assess the following case:

U.S. border guards detain an individual whose duffel bag contains a large container of cocaine, but when the case comes to trial, the defendant argues that he had no idea drugs were in the bag.

Under federal law, it’s a crime to “knowingly or intentionally . . . possess a controlled substance,” but if an individual says he is not guilty and there are no witnesses to prove otherwise, how will you determine what he knew or believed?

That thought experiment was one of six designed by a team of law and neuroscience experts to study how jurors assign a mental state without a “transparent window” into the accused’s mind, as well as examine how these decisions are influenced by feelings about criminal culpability.

Some 628 individuals participated in the experiments, conducted online, between November, 2015 and October, 2016. Over half (53 percent) were male, and 77 percent were white. They represented a broad variety of income groups and educational background. All were U.S. citizens or U.S. residents over the age of 18.

The authors’ conclusions, presented in a forthcoming paper for the Vanderbilt Law Review, could be grim news for most criminal defendants in similar circumstances.

Even though nearly all U.S. drug statutes require “knowledge” in order to convict, “for the average jury-eligible American, mere recklessness as to the presence of drugs in the bag is sufficient for conviction,” the paper says.

“In fact,” write the authors, “there is no material difference in the proportion of subjects holding a defendant guilty when the evidence strongly suggests that he ‘knows’ that the circumstance exists, as compared to suspecting that it does.”

What’s more, the percentage of would-be jurors who assigned a mental state of “knowledge” jumped from 18 percent to 33 percent when they were told that knowledge was required to convict—even though evidence only indicated an “awareness of risk.”

Many of those who decided the behavior was reckless also chose to convict, despite instructions to take into account the defendant’s declared non-awareness of criminal behavior.

The authors of the study, entitled “Decoding Guilty Minds,” were Matthew R. Ginther of the Court of Federal Claims, Office of Special Masters; Francis X. Shen of the University of Minnesota Law School; Richard J. Bonnie of the University of Virginia School of Law; Morris B. Hoffman, Second Judicial District Court Judge, Colorado; Owen D. Jones of the Vanderbilt University Law School and Department of Biological Sciences; and Kenneth W. Simons of the University of California, Irvine School of Law. The experiments were funded by the MacArthur Foundation Research Network on Law and Neuroscience.

For the purposes of the study, they focused on mental states as they pertain to material circumstances.

Using four mental states (or mens rea) as defined by the Model Penal Code (MPC) and nine different criminal charges, researchers presented subjects with a series of one-paragraph scenarios about a fictional defendant named “John.”

Each experiment was altered to variously tease out “unguided moral intuitions,” feelings about culpability, and the effect of mens rea instructions to potential jurors.

Previous studies by the research group already showed that subjects of the experiment tended to disagree most, or show the least confidence, when it came to distinguishing between “recklessness” and “negligence.”

Significantly, the authors said, the threshold for conviction by these same jurors consistently fell between negligence and recklessness, rather than the threshold according to our legal framework (between recklessness and knowledge).

Why did subjects assign knowledge when evidence was weak?

One possible explanation, according to the study, is that people have a hard time understanding the difference between knowing and recklessness conduct, “and, because they cannot detect a difference between them, they are treated as morally equivalent.”

But two of the experiments showed that subjects did understand and correctly differentiate between these mental states as defined in the MPC.

A more likely explanation is that people do not find a moral distinction between knowing and reckless behavior, and ignore mens rea requirements in favor of their “bare intuition.”

Should our legal framework shift to recognize the shared moral instinct of jury-eligible adults? Do jurors need better instruction?

The paper notes that while law scholars have long debated mens rea criteria, they have ignored the people ultimately assigned to adjudicate these statutes.

The authors acknowledge the results of their experiments are “intriguing, yet preliminary,” and add that more research is required.

“In the meantime, however, our research could have important consequences for legislatures, appellate courts, and trial judges who are trying to decide whether a defendant needs to know a fact to be criminally responsible, or merely needs to be reckless or negligent.”

The full study can be downloaded here.

This summary was prepared by Victoria Mckenzie, Deputy Editor of The Crime Report. Readers’ comments are welcome.


The Simple Way to Prevent False Confessions

If a lawyer were present at all police interrogations–including of children under 15—prosecutors could avoid scandals like the 15 men exonerated in Chicago this month on the grounds of false confessions, says a juvenile justice advocate.

This month, Cook County prosecutors in Chicago dropped charges against 15 men, and two others claiming innocence won a new trial—all based on false confessions.

Even for Chicago, the so-called “false confession capitol of the nation,” this was extraordinary. The Chicago Tribune called it the largest mass exoneration in Cook County history.

Cook County Prosecutor Kimberly Foxx did no more than her duty.

When I was an indigent appellate defender in the northern part of Illinois in the 1980s, prosecutors routinely confessed error and/or dropped charges to correct a miscarriage of justice.

The role of the prosecutor is not to convict, but to seek justice. Justice is based on fairness, which means ensuring that the rights of all are protected throughout the process. Coerced confessions have no role in a just system—prosecutors fulfill their ethical duty in correcting such injustice.

According to the National Registry of Exonerations, Illinois has a false confession rate more than three times higher than the national average—and nearly one in four of the false confession cases in Illinois come from Cook County. Millions are spent in settlements in false confession cases, and the lives of innocent people and their families are forever altered, if not ruined.

And, of course, when the wrong person is convicted, then the actual offender is still at large, so the public is left at risk.

There is a simple answer to prevent false confessions, one urged by the U.S. Supreme Court more than 50 years ago in Miranda: Just give everyone a lawyer throughout interrogation.

Shockingly, an examination by the Police Accountability Task Force of arrests in Chicago in 2014 and 2015 found that less than one percent of all arrestees–adult and juvenile–had the assistance of a lawyer at any point during interrogation.

So police in Chicago are interrogating children—and adults—without the protection of a lawyer in nearly every case.

See also: Third Degree Lite: The Abuse of Confessions

There have been movements to expand access to counsel. Last Spring, the Cook County Chief Judge issued an order appointing the public defender to be available to represent children and adults during police interrogation, so that persons arrested in Cook County would have access to a lawyer without charge.

Also, the Chicago Police Department agreed to comply with an Illinois statute that requires all police to post a sign with information on the right to legal assistance during interrogation.

In addition, troubled by the lack of legal assistance for children during interrogation, the Illinois Legislature unanimously approved a reform requiring lawyers throughout interrogation for children under the age of 15 in serious cases, and required the videotaping of all felony interrogations of all children.

The bill was watered down from the original proposal to provide lawyers to all children under age 18. Opposition to the original proposal came from law enforcement.

The first argument from law enforcement was that there would not be enough lawyers—that it would be too hard to find a lawyer during off hours. If this is an acceptable argument, we should be honest and revise the Miranda warning to tell arrestees that they have a right to a lawyer but that one will only be provided to them from 9-5 on Monday through Friday.

The second argument is that it is too expensive to provide lawyers 24/7.

Having a public defender on call 24/7 is certainly a cost to the public, but so is the cost of paying police, sheriffs, county jail staff, and county detention staff 24/7. So if we agree to pay the cost of all these law enforcement staff 24/7, then why can’t we have also pay for a lawyer to be on call 24/7?

After all, if a person is coerced into a confession, then as a society we pay substantial costs in prosecution, decades of incarceration and eventually in false confession settlements. Surely the meager cost of an on-call lawyer is far less than the extraordinary incarceration and exoneration costs to taxpayers.

Another argument is that police will never solve cases if lawyers are present because suspects will not talk. But in England, where the law has required lawyers for decades, research clarifies this is not the case—arrestees are just as likely to give statements with lawyers present.

An arrestee with an alibi is just as likely to give the alibi with a lawyer present. The difference is that the statement is more likely to be reliable.

Further, as the report by the Police Accountability Task Force documents, the practice of excluding lawyers and coercing confessions has a chilling impact on community relations. Police therefore find it harder to get community cooperation in solving crimes.

Community cooperation, based on community trust that police will treat everyone fairly, is much more critical in solving crimes than individual statements, especially those made without legal protection. Finally, confessions alone are not the only way to prove a connection to an offense. Police have a wide variety of tools.

Elizabeth Clarke

Elizabeth Clarke

Lawyers are essential. Police agree—and police contracts contain numerous protections including access to a lawyer and limits on custodial interrogation to protect the rights of police during questioning and withstand complaints about their conduct.

The sad litany of exonerations based on false confessions illustrates that all arrestees need the protection of a lawyer. It is time for Illinois to follow the recommendations of the Police Accountability Task Force and ensure that all persons have a lawyer during interrogation, especially children.

Elizabeth Clarke is founder and president of the Juvenile Justice Initiative. She welcomes comments from readers.


Judge Cynthia Brim: The Difficulty of Removing a Bad Judge From the Bench

      Cynthia Brim, a black woman from Chicago’s south side, graduated from the city’s Loyola University Law School in 1983. In 1994, the 38-year-old lawyer, after working seven years in the Chicago Law Department, was elected to the pos…

      Cynthia Brim, a black woman from Chicago's south side, graduated from the city's Loyola University Law School in 1983. In 1994, the 38-year-old lawyer, after working seven years in the Chicago Law Department, was elected to the position of Cook County Circuit Judge. She presided in the Markham Courthouse in south suburban Chicago. Most of her workload involved simple traffic cases. Elected to a six year term, she would remain on the bench until Cook County citizens voted not to retain her. That hasn't happened to a Cook County judge in 24 years. In Chicagoland, once on the bench, always on the bench. In reality it's a lifetime position.

     By any standard, Brim was not a competent judge. In 2000, 2006, and 2012, years in which Brim was on the ballot for retention, the Chicago Bar Association did not recommend that voters retain her as a judge. According to the bar association, Brim was not qualified nor fit for the relatively simple job of presiding over minor traffic offenses. Notwithstanding the bar association's stamp of disapproval, Cook County voters kept her in on the bench.

     On March 9, 2012, Judge Brim turned up at the Daley Center Courthouse in downtown Chicago where she threw a set of keys at and shoved a Cook County Sheriff's Deputy. Officers handcuffed the out-of-control woman and took her to a holding cell in the basement of the courthouse. A Cook County prosecutor charged Judge Brim with misdemeanor battery.

     A court-appointed psychiatrist examined the judge and concluded that when she committed the crime, she was out of her mind. The day before her fight with the deputy, while sitting on the bench at the Markham Courthouse, Judge Brim had to be ejected from her own courtroom following a 45-minute rant on racism in the criminal justice system.

     Shortly after her arrest for battery, a panel of Cook County supervisory judges suspended Brim for an indefinite period of time. While the fracas with the police officer represented her first brush with the law, the mental breakdown the day before her arrest fit into a long history of such irrational behavior. The woman was clearly unfit for the bench, but because she held an elected office, stripping Brim of her judgeship was next to impossible. Indefinite suspension was the next best thing. During this period, however, until her term runs out, Brim will still be paid her annual salary of $182,000 a year. Welcome to Cook County Illinois.

     Joe Berrious, a Cook County Democratic machine boss, told reporters that Judge Brim would receive the full support of the party in her next retention election. (There is either a critical shortage of qualified judges in the Chicago area or the judicial system in the county is controlled by political hacks.)

     In November 2012, Cook County voters gave the suspended mentally ill judge another six years in office. I guess this is democracy at work.

     Judge Brim went on trial for battery in February 2013. She waived her right to a jury in favor of a trial by judge. Her attorney, in presenting a defense of legal insanity, revealed how unfit his client was for the bench. According to the defense attorney, Judge Brim, since becoming a judge in 2014, had been hospitalized for mental illness nine times. In describing Brim's skirmish with the deputy sheriff, the attorney said, "This was not the action of a rational human being. This is someone acting pursuant to the symptoms of a mental disorder."

     The trial judge in the battery case found that when the defendant unloaded on the deputy, she was legally insane. As a result, he placed Judge Brim on probation and ordered her to stay on her antipsychotic medication.

     In an effort to get Judge Brim permanently removed from the bench, John Gallo, the attorney for the Judicial Inquiry Board, filed a complaint in August 2013 charging Brim with conduct "prejudicial to the administration of justice that brought the judicial office into disrepute." Attorney Gallo noted that after the incident in the downtown courthouse, Judge Brim had been hospitalized three weeks for bipolar mood disorder.

     Attorney Gallo wrote that the day before the judge's arrest, while presiding over a traffic case, Brim suddenly launched into a 45-minute tirade in which she revealed that her grandmother had been raped by a white man. She also accused two Cook County police agencies of targeting Hispanics and blacks. "Justice is all about if you're black or white," she said before being forcibly removed from the courtroom.

     In March 2014, Brim's case came before a judicial disciplinary panel comprised of an Illinois Supreme Court Justice, two appellate court judges, a pair of circuit court judges, and two citizens. In a bid to save her $182,000 a year job, Judge Brim spoke to the panel. Regarding her rant the day before her run-in with the police officer, she said, "I just broke like a pencil. It was totally inappropriate for me to say what I did at the time--or any other time."

     In an effort to convince the panel members that she was ready to return to the bench, Judge Brim said, "I can serve as a judge with full capability as long as I continue to take the medication as prescribed. I've had two years to think about this, and I have a different perspective and understanding of my condition. I realize now I have to stay on my medications and see a psychiatrist on a regular basis."

     Attorney Gallo, in speaking to the inquiry panel, voiced his concern over whether it would be proper for Judge Brim to return to the bench. "Judge Brim," he said, "decided to go without any kind of psychiatric treatment of any sort after 15 years of these episodes while she was a sitting judge." Mr. Gallo informed the panel members that Brim had been hospitalized nine times for mental breakdowns since she took the bench in 1994. In one of her psychiatric meltdowns EMT personnel carried her out of the courtroom on a stretcher after she went catatonic. Gallo pointed out that the judge wasn't diagnosed with a bipolar type of schizoaffective disorder until 2009. By then she had been a judge fifteen years.

     On May 10, 2014, the Illinois Courts Commission removed Cynthia Brim from the bench. The commissioners had determined that she was unfit to preside over a courtroom. Following her removal, however, she began receiving her pension in excess of $150,000 a year. She also remained registered in the state to practice law.



Categories: Law

FL Tech Firm, Lawyers Lock Horns Over Traffic Ticket Biz

TIKD alleges in a lawsuit that it is being blocked from consulting on traffic-ticket cases by the Florida Bar Association and The Ticket Clinic, a law practice with 28 offices in Florida. Its legal foes counter that TIKD is practicing law without a license.

A Florida tech startup that allows drivers to fight their traffic tickets from their smartphones says the Florida Bar and The Ticket Clinic are conspiring to drive it out of business, reports the Miami Herald. The startup, TIKD, has taken its fight to federal court, filing suit against both the Florida Bar Association and The Ticket Clinic, a private ticket-defense law firm. Earlier this year, TIKD launched its tech-enabled service and says it has served more than 5,000 people. TIKD is not a law firm, but instead uses independent lawyers to resolve the tickets at a cost that is 15 to 20 percent less than the ticket fee. Since then, founder and CEO Christopher Riley said, The Ticket Clinic has been thwarting its efforts to build a business at every turn.

The Ticket Clinic has filed complaints with the Florida Bar, claiming that TIKD is practicing law without a license, and has filed grievances against lawyers who have represented a TIKD customer. The stakes are high: The Ticket Clinic has 28 offices in Florida and 15 in California, and its 40 full-time attorneys have resolved more than 5 million cases. TIKD alleges in its lawsuit that the Florida Bar has abetted the conflict by dragging out an investigation for 10 months. It says the bar association has “engaged in a concerted effort to exclude TIKD…by enabling and reinforcing the Ticket Clinic’s anti-competitive propaganda campaign.”


The Anatomy of a Wrongful Conviction

     For purposes of this discussion, a wrongful conviction is the conviction of an innocent person rather than an overturned guilty verdict based on a procedural issue. In the past six years, more than 500 prisoners convicted of th…

     For purposes of this discussion, a wrongful conviction is the conviction of an innocent person rather than an overturned guilty verdict based on a procedural issue. In the past six years, more than 500 prisoners convicted of the crimes of rape and murder have been released after being exonerated by DNA analysis. And all of these convictions had been upheld on appeal before the application of forensic science set these prisoners free. Since only a fraction of murders, rapes, and aggravated assault crimes feature DNA evidence, it is reasonable to assume the above exonerations represent the tip of an injustice iceberg.

     More than 90 percent of criminal convictions in this country are based on guilty pleas, and it is a fact that defendants who are innocent plead guilty to avoid the risk of maximum sentences. Since plea bargained cases do not involve trials, there is no way to know what percentage of these cases involved trumped-up evidence, prosecutorial wrongdoing, and/or incompetent defense attorneys.

     In a criminal justice system based upon the presumption of innocence and due process, how can a defendant be convicted of a crime he didn't commit? Wrongful convictions are not caused by flaws in the system, but by the way the system is administered by criminal justice practitioners. What follows are common elements of wrongful conviction cases:

Incompetent and Unscrupulous Investigators

     There are too many inexperienced, poorly trained, and/or unethical police detectives. These officers often ignore or destroy exculpatory evidence. They employ interrogation techniques that produce false confessions, pressure uncertain eyewitnesses into positive identifications, and in the worse cases, fabricate or plant evidence. These detectives also make up probable cause to acquire search warrants, and commit perjury at trials.

Overzealous Prosecutors

     Unethical, over-eager, and politically motivated prosecutors often pressure forensic scientists to tailor their expert testimony to the prosecution's theory of the case. They introduce coerced confessions, and put unreliable eyewitnesses on the stand. When short of solid evidence of guilt, they produce jailhouse informants and phony, hired-gun experts. These prosecutors are more about winning cases than prosecuting the right people.

Useless Defense Attorneys

     There are too many criminal defense attorneys who are either professionally unqualified, or go into court unprepared because they are lazy. These practitioners do not spend much time consulting with their clients and do not carefully go over the prosecution's case. They don't file pretrial motions to challenge questionable confessions, expert witnesses, eyewitnesses, jailhouse snitches, and search warrants. At trial they do not aggressively cross-examine prosecution witnesses, or mount effective defenses. Following convictions caused by their own poor performances, they don't file appeals. Many public defenders offices in the U.S. are underfunded, and overwhelmed by huge caseloads.

Biased and Indifferent Judges

     As seen in the O. J. Simpson trial, judges aren't always up to the job. Many are incompetent, biased, unfocused, or weak. The worst are simply corrupt. Police detectives can be disciplined, and prosecutors can be voted out of office. Bad judges, however, are rarely recalled, and are hard to weed out.

     The American criminal justice system, made up of police, courts, and  corrections, is broken. Crime solution rates are at an all time low. Too many innocent people are convicted, and too many guilty people walk. 


Categories: Law

The Finders Keepers Rule

     Four home remodelers no longer face criminal charges for spending $60,000 they had found hidden inside a home in western Pennsylvania…The theft and related charges were dismissed in December 2014 by a Washington County judge in what has become known as the “finders, keepers” case…

     The four men had been working as under-the-table laborers, fixing up an unoccupied house, when they found the money hidden in a second-floor dormer. The newest bills dated to the 1980s. The men didn’t report the find and split the cash equally. The man they had been working for learned of the discovery and reported them to the police.

     The judge ruled that because the money’s owner couldn’t be identified, the four workers didn’t have criminal intent to steal the cash.

“Charges Dismissed Against Crew That Found $60,000,” Associated Press, January 2, 2015  

     Four home remodelers no longer face criminal charges for spending $60,000 they had found hidden inside a home in western Pennsylvania…The theft and related charges were dismissed in December 2014 by a Washington County judge in what has become known as the "finders, keepers" case…

     The four men had been working as under-the-table laborers, fixing up an unoccupied house, when they found the money hidden in a second-floor dormer. The newest bills dated to the 1980s. The men didn't report the find and split the cash equally. The man they had been working for learned of the discovery and reported them to the police.

     The judge ruled that because the money's owner couldn't be identified, the four workers didn't have criminal intent to steal the cash.

"Charges Dismissed Against Crew That Found $60,000," Associated Press, January 2, 2015  


Memo to Courtroom Defendants: Don’t Flip the Judge

     Your fingers can get you into a lot of trouble. Citizens who flip-off police officers are often arrested for disorderly conduct. School kids who make firearms gestures with their hands are suspended. And if you raise your middle fin…

     Your fingers can get you into a lot of trouble. Citizens who flip-off police officers are often arrested for disorderly conduct. School kids who make firearms gestures with their hands are suspended. And if you raise your middle finger while standing before an arraignment judge, they will haul you off to jail. If you don't believe this, ask Penelope Soto.

     On February 4, 2013, 18-year-old Penelope Soto, having been charged with the illegal possession of Xanax, stood before Miami-Dade County Judge Jorge Rodriguez-Chomat. Pursuant to the judge's decision regarding the amount of Soto's bail, he inquired about her assets. When the judge asked Soto specifically how much her jewelry was worth, she laughed.

     Visibly annoyed by Soto's casual attitude in his court room, the judge said, "It's not a joke, you know. We're not in a club, be serious about it."

     "I'm serious about it," Soto replied. "You just made me laugh. I apologize. It's [her jewelry] worth a lot of money."

     "Like what?" the judge asked.

     "Like Rick Ross. It's worth money."

     Judge Rodriguez-Chomat, who had no idea who Rick Ross was [a south Florida rapper], again became annoyed. He asked Soto if she had taken any drugs in the past 24 hours.

     "Actually, no," she replied.

     Judge Rodriguez-Chomat set Soto's bail at a very low $5,000. Moving onto the next case, he said, "Bye, bye."

     Instead of thanking the judge for his leniency, Soto replied, "Adios."

    Obviously irritated by Soto's flippant response and dismissive attitude, the judge summoned her back to the bench and upped her bail to $10,000. Still a relatively low amount.

     Now it was Soto's turn to be angry. "Are you serious?" she exclaimed.

     "I am serious," he replied.

     As she was being escorted out of the court room, Soto turned back to the judge, blurted "F-you," and flipped him the finger.

     Shocked and obviously angered by this prisoner's disrespect, Judge Rodriguez-Chmat cited Soto for contempt of court. He sentenced her on the spot to thirty days in jail.


Categories: Law

How Private is Your Cellphone? The Next Fourth Amendment Challenge

A case before the Supreme Court next month could decide whether constitutional protections against warrantless searches prevent courts and law enforcement from using evidence discovered from cellphone records, says a former NYC prosecutor.

Most people know that very little they do on the web is private. The terabytes of data held online contain personal information accessible not only to friends, relatives and would-be employers, but to private businesses, which frequently collect user information in order to deliver better services to customers.

Can the government see it too?

In 1979, the Supreme Court ruled in Smith v. Maryland that Fourth Amendment protections against warrantless searches do not cover such “third party” access to online data. In what has since been developed as the “Third Party Doctrine,” the court ruled that an individual has no legitimate expectation of privacy for information voluntarily given to a third party—be it a person, bank, or phone carrier—information that is also then similarly available to government agencies.

But what are government agencies, such as law enforcement, constitutionally permitted to do with the data they collect?  A case before the Court next month may help answer the question.

Carpenter v. United States has the potential to affect application of the Fourth Amendment’s Third Party Doctrine in the digital age.

The case involves a string of robberies, allegedly organized by the defendant, Timothy Carpenter, which occurred over a two-year period. Police acquired cell site location information (CSLI) associated with the phone he used. Although no search warrant was ever obtained, a judge did sign a court order under the Stored Communications Act, a statute that requires reasonable suspicion, not probable cause.

The CSLI records revealed Carpenter’s location and movements over 127 days and showed that during the five-month period his phone was in communication with cell towers near the crime scenes.

Although there is a tendency to read Smith v. Maryland as a blanket rule, where anything given to or accessed by a third party has no Fourth Amendment interest, it doesn’t make sense to apply a doctrine created over 30 years ago to types of communications and data that were neither used at the time nor contemplated by the Court.

Deanna Paul

“Given how much [of] our data goes through third parties, if you take a strong reading of the Doctrine, it essentially wipes out Fourth Amendment protections for most modern communications,” Michael Price, Senior Counsel for the Liberty and National Security Program at New York University’s Brennan Center for Justice, told me.

“There is also nothing about location information in Smith. To rely on it, and say that location information should be accessible without a warrant, is reading the case far too broadly.”

Price’s point is an important one.

To analogize cases is to suggest they should be treated the same under the law and receive the same level of protection. Although the facts may specifically involve cell-site information, Carpenter is about more than just location privacy. Here, as is increasingly the case with Internet-of-Things-based prosecutions, a third-party server already had access to the sought after location data.

Carpenter presents the first chance for the Court to reconsider Fourth Amendment protections against warrantless searches and seizures of information generated and collected by the many modern technologies we use every day.

This is an opportunity at least one Supreme Court Justice has recognized.

In 2012, the Court resolved the issue of location privacy in United States v. Jones, holding that installation of a Global Positioning System (GPS) tracking device on a vehicle and using it to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. In her concurrence, Justice Sonia Sotomayor wrote that the current approach to these cases is “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks”

She suggested it may need to be rethought in the future.

There are signs from recent cases, like Jones, that the Justices are aware of the importance of technology in contemporary life. They appear to recognize that technology is significantly different today than it was ten years ago, let alone when the Court was deciding cases like Smith.

Riley v. California was the first time the Supreme Court identified the central role that cellphones have in today’s society, holding that police need a warrant to search a smart phone belonging to a person who has been arrested.  Writing for the majority in 2014, Chief Justice John Roberts said that cell phones have “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Riley Court went on to say that cellular phones have become essential to freedom of speech and First Amendment rights and, due to the volume and personal nature of the information that can be stored on a cellphone, the data should be presumptively protected by the First Amendment. The decision notes that a cell phone can double as a diary, camera, calendar, or newspaper, which makes the search of one fundamentally different from a physical search or even a search of business records.

“This is an important decision, in terms of First Amendment protections, showcasing the Supreme Court’s comfort with new technology and that it is cognizant of the impact of digital information,” said Andrew Ferguson of the David A. Clarke School of Law at the University of District Columbia, and a national expert on predictive policing and the Fourth Amendment,

See also: Digital Privacy Rights of Probationers

Similarly, earlier this year, the Court decided Packingham v. North Carolina, which addressed the prevalence and necessity of the internet and social media in a digitized society.

Riley embodies the idea that new technologies and the digital space are different, yet fails to view these devices for what they are rather than what they’re most similar to. A cell phone is not a diary, calendar or any of the technologies cited by by the Court, and to draw a series of slightly-off-the-mark analogies and suggesting they should be treated the same, is not a solution.

In reviewing Carpenter, there are only a few scenarios for the Court—each of which will have lasting implications.

The Court might opt to temporarily put tape over the problem, hiding behind the Third Party Doctrine and wait for the next case to make its way up.

Or it could limit the Doctrine’s application to CSLI and recognize that carrying a cellular phone does not, in and of itself, amount to consenting to location tracking.

“One of the difficulties the Court is confronted with is that the Doctrine, as it’s been created, doesn’t offer a nice neat answer,” said Ferguson. “The Court may have to rethink their traditional approach to the Fourth Amendment in order to address this new technological threat to privacy and security.

“The other difficulty is: If Carpenter is really about the future of the Third Party Doctrine, it is about far more than just cell site records—it is about the future of a data-driven third party mediated age.”

That is a huge question to answer. And, due to the far-reaching consequences any of the scenarios the Court may chose, the Court may also just decide to punt it to a future case.

There are few things we do online that aren’t connected, in some way, to a third party. As smartphone technology continues to advance, more and more aspects of our lives will be recorded and stored on third-party servers. Lower courts across the country are only just beginning to consider how the Internet of Things will affect our expectations of privacy.

Carpenter is an opportunity for the Supreme Court to reconceive how privacy and security values can be protected in an era of increasingly sophisticated surveillance technologies that allow us to remotely control the lights and heat in our homes or monitor intruders.

Let’s hope the Justices take it.

 Deanna Paul (@thedeannapaul) is a former New York City prosecutor and adjunct professor of trial advocacy at Fordham University School of Law. This fall she will begin attending Columbia University’s graduate school of journalism. Her nonfiction work has been published by The Marshall Project, Rolling Stone, and WIRED.