17 December 2012

US Supreme Court, The Right to Confront & What the Heck?!?

Okay, I'm researching double jeopardy rules and I trip across Williams v. Illinois.  I don't know how I missed this when it came out, but here's my summary:
Williams v. Illinois, JUN12, USSC No. 10-8505: (1) FOUR JUSTICES ONLY: At least in bench trials, inadmissible out of court statements (DNA analysis) which an expert talks about in explaining the basis for his opinion are not offered for their truth and therefore are not subject to the confrontation clause. NOTE: This relies strongly on Federal Rule 703 which does not track with Virginia Rule 2:703(b). (2) FOUR JUSTICES ONLY: Statements which fall under the confrontation clause have two characteristics. (a) They involve out of court statements having a primary purpose of accusing a defendant of a crime. (b) They involve formalized statements such as affidavits, prior testimony, or confessions. (3)(a) A DNA report from before the offender is identified is non-testimonial because its primary purpose was not to obtain evidence for the trial of the offender, but to catch an offender. (b) DNA evidence is not inherently inculpatory; it exculpates everyone but the offender. (c) Requiring the technicians who worked on preparing a profile to testify is economically expensive and would discourage the use of DNA in favor of less reliable evidence. (d) The defendant is not prejudiced because he can subpoena the technicians who prepared the profile. (4) JUSTICE THOMAS ONLY, rejecting both above but concurring: (a) A rule of evidence does not trump the right to confront, especially one that was created contrary to the common law rule it replaced. (b) The confrontation clause regulates only those statements with indicia of solemnity so that they are formalized testimonial materials, including depositions, affidavits, prior testimony, or statements from formalized dialogue such as custodial interrogation.
Okay.  Now, in case any of you missed it, there are five votes against the two rationales that were announced for upholding the denial of the applicability of the right to confront by four of the five justices who upheld the trial and appellate courts. And then there's an opinion by one guy who doesn't agree with anybody, but determines the outcome of the case. Sometimes I wonder whether those folks in the big stone building in D.C. realize that the rest of us have to try to actually figure out how to apply the obtuse obfuscations they send down from the mount.

In Williams, there was an unidentified rapist.  A DNA sample taken from the victim was sent to a out of state lab.  When the result came back it was compared to DNA samples that the state had previously taken from convicts and analyzed at the state lab.  There was a match.  Illinois provided both the person who performed the test on the sample taken from Williams after the prior conviction and the person who compared the results, determining that they matched.  However, it did not call anyone from the out of state lab to testify about that sample.  Williams cried foul, claiming a violation of his right to confront the person who did the analysis in the out of state lab.

There's a very strong argument that Williams should be entitled to examine the analyst from the out of state lab under current constitutional jurisprudence.  The DNA analysis from the out of state lab is vital to the case and Williams would not have even been a suspect without it.  However, the above opinion holds otherwise.  Look, I'm a prosecutor and predisposed to the introduction of these forms, but those rationales are poor.  Mayhap, Oh Great Supreme Court Justices above us all, you might try a justification such as this:  (1) The analysis of the DNA is done by a machine.  (2) A machine cannot be examined or cross examined.  (3) The work done by a machine is not testimonial.  (4)  The technicians that put the item into the machine, take the item back from the machine, and get a copy of the result from the machine are merely extensions of the machine's workings. (5) The comparison of the two results from machines by a human being is testimonial and that person must testify.    

Yes, there are issues with (4), but there has to be a point where you draw a line.  There's always one more person down stream whom the prosecutor has not brought to court. If the prosecutor provides the analyst and the technician then the defendant can complain that the person who maintains the machine has not been called.  If the prosecution provides the analyst, technician, and maintenance man, then the defendant can complain that the person who designed the machine has not been called. et cetera. et cetera. et cetera.  A line has to be drawn somewhere and the technician / analyst line seems to be a logical place.  This, of course, does not address chain of custody issues - only the right to confront.

Instead we get the "because it passes Federal Rule of Evidence 703 it is constitutional, especially in front of a judge" argument.  That argument is pretty threadbare and Justice Thomas deals with it without breaking a sweat.  Virginia Practitioner's Note: Be advised that our Rule of Evidence 703(b) does not track with the federal rule; we stuck with the common law:
(b) Criminal cases. In criminal cases, the opinion of an expert is generally admissible if it is based upon facts personally known or observed by the expert, or based upon facts in evidence.
Therefore, in Virginia the expert cannot rely on inadmissible evidence and therefore could not talk about it in his explanation of the basis of his opinion.  Therefore, this should never be an available argument in Virginia.

As for the primary purpose test, (3)(a) above does make an arguable point as to the primary purpose of the of the analysis.  However, it's a microscopically thin hair they're splitting there.  Yes, the primary purpose was to catch the rapist, but the primary purpose of catching him is to prosecute him (this does not appear to be a serial rapist case with a desperate need to find the offender before he strikes again).  Catching the offender and prosecuting him are events of a continuing purpose and intimately intertwined.  It makes no sense to separate the two.

The rest of the Four's argument is specious.  Despite what (3)(b) states, if something exculpates everyone else it is clearly inculpatory evidence against anyone it does not exculpate.  The fact that a requirement will lead to increased cost, per (3)(c), does not mean that the constitutional requirement can be bypassed.  I'm fairly certain that if we took thieves out the back door of the courthouse and executed them the moment they were convicted it would be much cheaper than allowing them appeals and maintaining prisons to house them; nevertheless, we obey the constitutional mandates.  Arguing that the defendant's right to confront is okay as long as he could subpoena a person to court, as in (3)(d), would relieve the prosecution of any duty to provide anyone; after all, if the defense did not want the prosecution to be able to rely on the police report as proof of an illegal act, it could have subpoenaed the officer.

As for Justice Thomas' rationale for upholding the introduction of the DNA test results, I must admit that it has a superficial attraction.  At first it appears to be a more bright line rule.  However, after examining it a little more closely, I think there would be some problems.  The obvious one is the one Justice Kagan raises in her dissent: if statements can get in just because they are not formalized then law enforcement agencies, legislatures, and prosecutors are going to go out of their way to stop getting things formalized.  Whether a certificate of analysis from the state lab has an attestation on it is a formality only; presumptively, the lab will do the same work either way and it will carry much the same weight with the finder of facts.  Does anyone truly believe the jury goes back to deliberate and spends time examining the notarized seal on the report?

I'm also concerned as to what "statements from formalized dialogue" means exactly.  As "custodial interrogation" is pointed out, we know it is covered, but what about a 9-1-1 call?  Or even an interview of a witness?  Are they formalized because they are noted and reported?  Or are they lacking formality because they are not done in a custodial environment or in a particular fashion set forth by an agency policy?  That's a nest of vipers I don't particularly want to get thrown into.  In the end, Justice Thomas' solution seems too readily circumscribed and thus unworkable.

Here's the rule as I see it for those of us practicing in Virginia, applying the rule of the Four and the rule of Thomas and considering Virginia's Rule 703(b):
Rule of the case:  A non-formalized statement which has as its primary purpose the catching of an offender who has not been specifically identified when the testing is done can be admitted at trial.
If the statement makes it through all those hoops it has the support of five justices.  Mind you, this is tenuous as all get out.  A portion of the rule I just laid out is opposed by five justices.  The other portion seems to be opposed by eight.  Nevertheless, if you tack windward you have the number of votes needed to support the rule.

And, good luck explaining all this to your trial judge during a two minute bench conference in the middle of your next jury trial.  You can do it.  I have faith in you.

11 December 2012

Prosecutors in Korea

Here's what I know about what happens to you if you break the law in Korea: you either get prosecuted by an uber rich party girl who has a way overdeveloped, inappropriate  fashion sense or you get prosecuted by vampire.  Personally, I'm not sure which is worse.

Somehow, Netflix has decided that I am Korean and keeps recommending Korean TV series to me.  So far, I have only watched two, Prosecutor Princess and Vampire Prosecutor.  I'll let you figure out which one centers around a fashion maven and which one has a troubled stalker of the night fighting against his primal urge to snack on the people around him.  Well, okay, maybe I'll fill in a few details for those of you who can't figure it out on your own.

Prosecutor Princess starts out cute as we see the normally stoic, reserved and cookie cutter prosecutors having their lives disrupted by this out of control party girl who wears suits that each cost more than a prosecutor earns in a single year.  It develops into a decent drama involving the manipulation of this girl by outside forces using her as a pawn which becomes increasingly aware of her situation as things play out.

I have not finished Vampire Prosecutor yet, but it's about a guy who has been turned into a vampire and now uses his powers for good.  In some ways he's the typical modern tortured-soul vampire we've been seeing in modern TV at least since Angel in Buffy the Vampire Slayer.  He fights off his urge to eat somebody in just about every other episode and he is haunted by something that happened in his past.  On the other hand, he doesn't seem to be affected by sunlight in the least and he has some nifty powers I've never seen in a vampire before.  He can come to a crime scene and just by looking see from the moment that the first drop of blood hit the ground to the moment that drop of blood left the body.  If he actually drinks some of the blood he can even see back further and gets glimpses of the perpetrator or other important bits of evidence.

To be honest, I enjoyed Prosecutor Princess more than Vampire Prosecutor - although that may be because I watched Princess a while back and have forgotten its flaws and I am currently working my way through Vampire.  Anyway, there seemed to be actual character development in Princess as the main character realizes there is more to life than fashion and then begins to realize even more.  In Vampire the only character who seems to grow is a female assistant prosecutor whose main purpose in many of the episodes is to run around filling in time with a fruitless investigation until Vampire Guy can swoop in to save the day.  Oh, and she's also one of the girls who gets tied up every second or third episode.  Koreans don't seem to be particularly shy about that sort of thing; it's almost like one of those old Detective Magazines.

Beyond the stories, we also get a glimpse of what being a "prosecutor" is like in Korea.  It seems quite different than what we have here in the States.  The prosecutors seem to be more along the line of investigators, calling in victims and suspects to question or even going to crime scenes to try to figure out what happened.  As a side note, it appears that defense attorneys are specifically disallowed while the prosecutor questions the suspect in Korea.  In fact, it appears that the prosecutor gathers all the evidence, makes a determination of the facts, and offers a disposition.  After that, if the defendant ne suspect rejects the deal he can have a defense attorney.  I'm not sure if I've gotten that exactly correct, but it appears to be the way the process works.

There does not seem to be a jury, although it appears that there are three judges in a trial.  I don't know if they rule by majority vote or whether unanimity is required.  In the shows the only person who talks much is the man I assume is the chief judge (the judge sitting in the center of the bench).  Other than that, the process seems to progress much as a bench trial might here.  However, there does not appear to be double jeopardy in Korea.  In at least one of the Vampire episodes a person is brought back before the judges more than once after they dismiss the charge.

All-in-all, the two series are worth taking the time to watch.  So far, Netflix has pointed me toward British and Korean lawyer dramas.  I wonder which ones it will pop up for me next.  Indian?  Brazilian?  Egyptian?

04 December 2012

An Ambush in Bartlette: 12

[Chapter 1] . . . [Chapter 2] . . . [Chapter 3] . . . [Chapter 4] . . . [Chapter 5] . . . [Chapter 6] . . . [Chapter 7] . . . [Chapter 8] . . . [Chapter 9] . . . [Chapter 10] . . . [Chapter 11]

If there was a Hell, the last month was surely its attempt to manifest itself in Bartlette County. And, much like one might expect from Hell, just as you started to have some hope that things were getting better that hope was snatched away and more pain was piled on. This week had been filled with shock and pain. It was eight on Friday evening when Yusif found himself mulling over these dark thoughts. He was still at the courthouse. He stared at the bricks in the wall of his office trying to process everything that had happened.

It started the Friday before because Father Tolton went to question the ambush victims who were in the hospital and he claimed that Mark Carr woke up and told him that Sergeant Ian Minor was involved in the ambush. Instead of coming to the Sheriff or Brad about this, Father Tolton had somehow gotten in contact with FBI agent investigating the attack. On Sunday, Dave Jordan, an Investigator for the Sheriff's Department and the Sheriff's stepson, drove to Roanoke and beat the living tar out of the attorney who had come to Bartlette and had that enigmatic conversation with Yusif. The photos showed a man who had his face beaten so badly his eyes were swollen shut and several teeth were gone. Monday Morning Squire died unexpectedly when something went wrong after his surgery. Later that day, Ed Boyd died less than an hour after the hospital unhooked him from life support. Meanwhile, both Brad and the Sheriff had gotten wind that something was going on between the Father Tolton, the FBI, and the State Police; however, neither of them could get answers from anyone about what was going on.

Tuesday morning they found out. Sometime between four and five in the morning a large number of State Police, FBI agents, and Federal Marshals arrived in Bartlette County with both search and arrest warrants. They arrested the other two investigators from the Sheriff's Department, Jeff Sanger and Ian Minor, as well as the Chief of Police for Yared and his two senior officers. They searched all of their houses, the houses of everyone caught in the ambush, the offices of the Yared Police Department (three rooms in the town hall), and the new Sheriff's Office which had been set up in the abandoned stores across from the courthouse. The initial warrants were federal, but State Police agents went to the magistrate's office that morning and got murder and drug distribution charges in Virginia as well. Everyone was in shock; even Brad had seemed at a loss as to what he should do. However, Brad never remained quiescent for long. By noon, he was calling people and demanding answers. When federal and state agents proved intransigent, Brad started calling political allies both in the Virginian and federal government. Yusif had known that Brad was politically well connected, but even he was surprised at the breadth of those connections. Before the day was out, Brad got a United States Senator to call the FBI and several Virginia Delegates and Senators to call both the Attorney General and State Police headquarters. Faced with this pressure, the agencies had agreed to brief Brad on what was happening, but they absolutely refused to bring the Sheriff into the loop; they even made Brad sign non-disclosure documents which forbade him from talking to anyone in general and specifically forbade him from talking to the Sheriff or anyone in law enforcement. Yusif knew this because when he pressed Brad to tell him what was going on Brad showed him the documents. Brad spent most of his Wednesday and Thursday out of the county, getting briefings. This left Yusif to handle court, help Paula prep for the hundreds of cases being presented to the next grand jury, answer the calls from upset citizens who did not understand what was going on, and fend off the press. The ambush and explosion had gotten national attention for a day or two, but Brad handled most of that. The story of lawmen killing lawmen and a county basically being invaded by federal agents made the press rabid. It seemed like every five minutes a different news agency was calling and one twenty-four hour channel even sent a team to ambush Yusif as he left his house Thursday morning.

On Thursday, Mark Carr died. Despite increased observation after Father Tolton talked to the FBI, the deputy never woke again. The only person who could confirm the Father's statement about what happened in the Veteran's Hospital was Andy Carr and he had dropped off the face of the Earth.

On Friday, the plan was to bring the accused lawmen to court for their pretrial hearing. Unlike other states Virginia does not do an early arraignment. However, defendants still have to be brought before a judge within a certain amount of time after they are charged so the judge can make sure they know what they were charged with, assign them attorneys if they cannot afford one, and perhaps adjust their bond. The State Police were going to bring the three investigators from the Sheriff's Department and the three officers from Yared one at a time to the courthouse from the various regional jails where they were stashed. None of them were being housed at local jails and no more than two were being kept at the same jail, segregated from each other even there. The State Police intended to bring the accused to court one at a time, staggered at hour intervals throughout the entire day. They would not even release a list of which defendant was coming to court at what time.

Things started falling apart immediately. At nine-fifteen three troopers showed up with Deputy Chief Haley from Yared and went to escort him in the side door through which prisoners always went. They found the door locked and a sign on it noting that entry through this doorway was limited to court security officers approved by the Sheriff. The troopers tried knocking on the door, but they got no answer. Then they took the prisoner around to the front door of the courthouse and found eight deputies waiting for them. The deputies informed them that because the Sheriff's Department was solely responsible for security at the courthouse only deputies were allowed in the courthouse under arms. The troopers refused to give up their firearms and after a short standoff returned to their cars. Of course, the entire thing was filmed by two different news channels and a bunch of people with cell phones. It was all over the internet within minutes.

The state police tried to get someone to order the Sheriff to allow them into the courthouse with their pistols. By one in the afternoon Brad had refused to involve the Commonwealth Attorney's office in an argument between the state police and the Sheriff and Sheriff Minton had told the Virginia Attorney General that as a constitutional officer the Sheriff did not take orders from the him or anyone else in Richmond. A lawyer from the Attorney General's office in Abingdon was on his way and expected to be at the courthouse by two.

In the meantime, their carefully planned schedule fell apart. The back parking lot was filled with state police cars and the four with the defendants in them were purposefully parked so that they were in different parts of the lot. Thinking back on it, Yusif marveled that no one had thought to call the oncoming troopers and tell them to go back - or at least to divert to someplace secure. The back parking lot may have been reserved, but it was in no way secure. Two of its sides had woods right up to the pavement. On top of all that, newsmen and plain old regular citizens kept putting videos of the troopers back there on the news and internet. It was almost predictable that something would go wrong.

At around one-thirty it did. Andy Carr came out of the woods and unloaded a revolver into the front window of the nearest car with a prisoner in it. Most of the bullets were stopped by the window glass and the two that got through lodged in the empty driver's side seat. The prisoner in the back, Lieutenant Mickelson from the Yared police department, did not even have time to duck for cover before all the shots had been fired and Andy ran back into the woods with six troopers in pursuit. Ten minutes later they had him under arrest and took him off to jail to face attempted murder charges. Then, they also started driving the prisoners back to the jails.

By three some lady who was an assistant attorney general showed up and Judge Isom got her, the state police first sergeant, the Sheriff, and the county attorney in his chambers and the yelling was loud enough and the old walls thin enough that it could be heard out in the courtroom. The words were not quite discernible, but it was very clear that the judge was reading them all the riot act. When they came out of the judge's office all of the people who went in were steaming. The assistant attorney general and first sergeant went to one table in front of the bench; Sheriff Minton and the county attorney went to the other. Judge Isom went straight to his bench, sat down, and immediately announced his decision.

"This Court finds that the special circumstances in these cases merit the following special conditions and behaviors. At any time one of the following six defendants - Mike Haley, Oscar Mickelson, Charles Poplin, David Jordan, Ian Minor, or Jefferson Sanger - are in the courthouse the Bartlette County Sheriff's Department shall maintain its duty as the primary security force for the courthouse. However, the Virginia State Police shall maintain its self-imposed duty as the primary security force dealing with the prisoners. To achieve both of these missions, the Court hereby orders that on any date when any of these defendants are in the courtroom there shall be one bailiff from the Sheriff's Department and one bailiff from the State Police in the courtroom from eight a.m. until all of that day's cases are completed and the courthouse closed. As well, the front door of the courthouse shall be guarded by two deputies and two state policemen during that same period of time and whenever one of the defendants is brought into this courthouse or before this bench he shall be escorted by one deputy and one state trooper. At all times each deputy and state policeman who enters the courthouse or provides security at its front entrance shall be in uniform - not tactical gear or civilian clothes - and carry only a pistol and no other weapons. No other individuals, whether they are law enforcement or not, shall be allowed to enter this courthouse under arms. This Court also orders that the defendants be brought before the General District Court in the next two hours for their pretrial hearings."

With that Judge Isom stalked from the bench back to his chambers. He had never even allowed all the people in the courtroom who were ordered to their feet when the judge came in to sit down. Yusif was watching from the back of the courtroom and he was pretty sure that if the door to the judge's office had been without a spring the judge would have slammed it behind him.

The State Police got the cars headed to the jails turned around and found an adequate number of troopers to set things up as the judge ordered. To make it work, the first sergeant actually served as the bailiff. By five, the defendants started being brought before Judge Fleming, who stayed late so that things could be done as Judge Isom had ordered. The troopers would drive one defendant into town, have his pretrial hearing, and then drive him out of town as the next defendant was being driven in. Yusif and Brad sat through every hearing and watched as a defense attorney stepped forward for each defendant and Yusif repeated by rote that the Commonwealth opposed any bond.

By six forty-five it was all done. Brad stepped out to talk to the media, giving some sort of general statement about how the citizens of Barnette County believed in law and order. As soon as the press dispersed Brad went straight to his car and left. Yusif stayed in the office, but he did not stay to do any work. He just sat there playing bloon tower defense on his computer and thinking dark thoughts until he was sure that everyone was gone. When he finally got up to leave he swore that he was going to leave this damned county and not return a second before he had to on Monday.