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“Actual Innocence” Outliers Versus the More Radical Daily Reality of Criminal Defense

2014 October 21
by Alex Coolman

I keep seeing interesting media accounts of cases of actual innocence lately, and yet these stories often don’t feel like they connect with the day-to-day reality of most criminal defense work.  I was reading, for example, this weekend’s New York Times review of Just Mercy, the new book by criminal defense attorney Bryan Stevenson, and wondering a bit at the rhetorical style in which Stevenson’s practice is characterized.  The reviewer describes Stevenson’s work in glowing terms, suggesting that he is an example of

one man’s refusal to sit quietly and countenance horror, [a person who shows] that evil can be overcome, a difference can be made

That characterization is, to be blunt, just a heap of cliches.  The reality of working in criminal defense is considerably more complicated, and the allocation of “horror” and “evil,” if one really wants to use those terms, is not nearly so cleanly one-sided.  It’s true that there are cases involving serious miscarriages of justice.  But the lion’s share of criminal defense actually does not involve those cases; it involves defending people who are manifestly, objectively guilty.  People who have made bad choices, and who are often not particularly sympathetic in spite of the challenges that they have experienced in their own lives.

The interesting and challenging thing about criminal defense work, from my point of view, is not the outlier cases where some radical mistake has been made and a completely innocent person has been convicted.  Anybody can agree about what’s morally right in dealing with those cases.

What is interesting, and even radical, about criminal defense work, though, is the insistence that all the rest of the cases, the overwhelming majority of the cases, which don’t involve demonstrably innocent people, are also ones that deserve a vigorous defense and a strict adherence to procedural protections.  In spite of the fact that most of the public does not give a damn, and in spite of the fact that it takes time, money, and some degree of spiritual mojo to do the work.

The reviewer of Just Mercy suggests that there are some parallels between Stevenson and Paul Farmer, the infectious disease doctor famed for his work in Haiti.  I have often tried to figure out how, and whether, there can be any crossover between criminal defense work and the work of doctors for the poor.  And I think the analogy is a difficult one, because poor sick people do not typically have any choice in whether they become poor and sick, whereas it is simply undeniable that there is a degree of agency involved in the commission of crime. It is therefore a lot easier to insist on spending $10,000 on drugs to cure a sick young girl in Haiti, for example, than it is to insist on spending $10,000 for an expert to evaluate a 52-year-old pedophile from Modesto.

However, to the extent that there is a parallel between these types of work I think it consists of the idea that excellent care should not belong only to some subset of the population, and that professionals whose job is to serve should serve everyone as well as they can, in spite of the pragmatic constraints that constantly make that ideal a challenging one to achieve.  Criminal defense is at its best when it insists on pursuing every case with vigor and creativity, not just that tiny subset of cases that involve an actually innocent defendant.


The NRC/NAS Report on Eyewitnesses, and the Need for Double-Blind Identification Procedures

2014 October 9

I’m just reading the new report from the National Research Council and the National Academy of Sciences on eyewitness identification procedures (“Identifying the Culprit,” available in pdf form for free here), and one thing in particular jumps out at me: the suggestion that ID procedures need to be carried out in a double-blind fashion.

In California, my sense is that law enforcement officials typically make some effort is made to produce reliable eyewitness identification evidence, and yet ID procedures are often carried out in a way that is not blinded and is often obviously intended to result in the selection of a particular suspect.  In particular, I frequently come across six-pack arrays that have been constructed after a witnesses has already identified a suspect.  The array is constructed, I suppose, to give the impression that there is some sort of reliability to the selection of the suspect, and yet the whole conceit of the six-pack — implying an ability to pick out an otherwise unknown individual based solely on his appearance — is bogus from the start.  Far more common that that scenario is simply the run-of-the-mill administration of a six-pack by an officer who already has a particular suspect in mind and is consequently likely to give off subtle, or not-so-subtle, cues about which suspect should be selected.

The report also includes powerful language on the flawed standard of Manson v. Brathwaite, which directs courts reviewing identifications produced by suggestive procedures to evaluate the overall reliability of the identification by considering various factors that, unfortunately, are not scientifically sound. The report writes:

The test evaluates the “reliability” of eyewitness identifications using factors derived from prior rulings and not from empirically validated sources. It includes factors that are not diagnostic of reliability and treats factors such as the confidence of a witness as independent markers of reliability when, in fact, it is now well established that confidence judgments may vary over time and can be powerfully swayed by many factors. The best guidance for legal regulation of eyewitness identification evidence comes not, however, from constitutional rulings, but from the careful use and understanding of scientific evidence to guide fact-finders and decision-makers.

Ya think?  Yes, it seems possible that we might get slightly more accurate identification results if our forensic analysis were based on contemporary science rather than decades-old theories propounded by judges.  Given that Justice Sotomayor also emphasized, in her dissent in Perry v. New Hampshire, that “confidence is a poor gauge of accuracy,” and given that the science backs up that point, perhaps the time is right for a cert challenge to the Manson v. Brathwaite standard.

English? Yes. Legalese? No.

2014 September 23
by Alex Coolman

An interesting footnote from a case published today (Fleet v. Bank of America, G050049) by Division Three of the Fourth District Court of Appeal, commenting on the style of a pro per appellant’s argument:

 The Fleets’ appellate brief demonstrates mastery of English but a natural – and commendable – unfamiliarity with legalese. This might be a good time to associate in someone who speaks that tongue.

Apparently the Fleets’ resort to regular English wasn’t all bad, though, because they won a reversal.  Perhaps another element in the mix, though, is the equities of the situation and the unfortunate way that Bank of America appears to have treated folks who were trying to save their home.  The court notes:

This case falls into line with a number of cases in which a homeowner has been promised a mortgage modification under a program designed to forestall foreclosure only to find the notice thereof posted on the door. The kindest interpretation to place on this scenario is lender incompetence – the left-hand loan modification department and the right-hand foreclosure department appear to be operating in total ignorance of each other. This is the most likely explanation, given the size of the institutions involved , but it is not the only one, and as the numbers of such cases grow, other less benign explanations are coming to more and more minds.

Winning the Appeal by Changing the Theory of the Case: Connerly v. California

2014 September 5
by Alex Coolman

How can a court of appeal find an “abuse of discretion” by the trial court, and reverse on appeal, if the court of appeal doesn’t think the trial court did anything wrong?  One way is explained in Connerly v. State of California (C073753), which was published Wednesday by the Third District Court of Appeal.

The wrinkle in Connerly is that when a court sustains a demurrer without leave to amend, the plaintiff may then “propose new facts or theories to show the complaint can be amended to state a cause of action, thereby showing the trial court ‘abused its discretion’ [citation] in not granting leave to amend.”  This rule comes from Code of Civil Procedure section 472c, which lets the new theory be asserted on appeal even if there was no request made in the trial court to amend.  Thus it becomes possible for the Court of Appeal to retroactively find an “abuse of discretion” even when the trial court was never asked to exercise its discretion in the first place.  As the Court of Appeal notes, it’s awkward that the result has to be framed in terms of trial court error when, in reality, the reversal is simply a function of the way the statute operates.



The South Pasadena School Arrests: Is Internet Research and Communication an “Overt Act” in Support of Conspiracy?

2014 August 19
by Alex Coolman

I’m intrigued by today’s announcement of arrests in an alleged conspiracy to commit a school shooting in South Pasadena, which appears to have occurred based in part on monitoring the Internet research activity of the students.   The boys involved in the plan will apparently be charged with conspiracy, which makes me wonder whether a “criminal conspiracy” can be said to exist based solely on matters that people talk about and research on the Internet. The Huffington Post reports that “Police found evidence that the boys were researching rifles, submachine guns, bombs and other explosives, especially propane.”

Conspiracy, in California law, requires both a plan and an “overt act.”  And it doesn’t take much, as one might imagine, to constitute an “overt act.”  But it does require an “act,” not merely a thought.  I do see at least one unpublished California case, People v. Spencer, 2012 WL 3308374, where one of the “overt acts” alleged was performing “computer research” to obtain the address of an individual.  So maybe that’s enough for a conspiracy.

But this case reminds me of two things.  One: the recent case of the New York man who planned to kill and cook his wife, but argued that the entire scheme was an elaborate mental game played out over the Internet.  In that case, and in this, much of the prosecution is based on expression on the Internet and research conducted on the Internet.  Which is a little uncomfortable simply because of the risk that people might be interested in freaky stuff in a purely abstract way and not actually have any intent to do anything illegal.

And, frankly, the other thing this case reminds me of is myself as a teenage kid interested in weird stuff.  Except that I wasn’t doing research on the Internet, I was just flipping through the pages of The Anarchist Cookbook in the UCSD library, reading all kinds of recipes for bombs and booby traps and other nonsense.  I was an honor student, not an anarchist.  I had no intention to hurt anybody or even to try any of the extremely ill-advised schemes in the book, and my actions were not subject to governmental scrutiny because I was reading a book rather than doing Google searches.

I want to think that strange, geeky kids of today should still have the freedom to be interested in strange, geeky things.  But I suppose times are just different now in the wake of Columbine and all the other horrendous incidents that we’ve seen.

Update 9/2/14: These students were ultimately charged only with threats, not with conspiracy.  Which is interesting in light of the considerations described above, but may or may not have anything to do with evidence of overt acts.

Related Posts: What a “Terrorist Threat” Is Not: Anonymously Blogging That You Would “Wouldn’t Mind Murdering” Kids

The 2014 Court Stat Pack: Reversals in Civil versus Criminal Appeals

2014 August 12
by Alex Coolman

Here’s an interesting set of graphs from the just-released 2014 California court statistics report.  The graphs show reversal rates in criminal versus civil appeals in fiscal years 2010-2011 through 2012-2013, where the criminal appellant was the defendant below.  The light gray bar is the percentage affirmed, the medium gray bar is the percentage reversed, and the black gray bars show dismissals.  Three years are shown, but the data is the same in each year: civil appellants obtain reversal more than four times as often as criminal appellants.

civil vs criminal

Gmail for Lawyers? No. The Skillern Case and The End of the Naive Cloud.

2014 August 11

I’ve used gmail in my law practice for years, but that has to change.  The problem, as we learned at the end of July, is that Google collaborates with law enforcement in run-of-the-mill state law criminal prosecutions by scanning and turning over incriminating gmail data.  And that is not a fact that can possibly be reconciled with any reasonable effort to protect client confidentiality over email.

I had subscribed to what one might call the “naive cloud” idea of gmail — i.e., the idea that my gmail was accessible to analysis for Google’s marketing purposes, but that that was the end of it.  Since I’m not handling any cases that involve imminent terrorist threats, I figured the NSA probably wasn’t paying much attention, and I didn’t really mind getting the occasional Google Ad for software, or vacation rentals, or whatever.

The case of John Henry Skillern erases those assumptions.  It is the end, for me anyway, of the naive cloud.

Skillern is a Houston man who was arrested and charged with possession of child pornography based on Google’s analysis of images that he had apparently sent through gmail.  And while child pornography is obviously a significant and troubling crime, it’s also a fairly run-of-the-mill, low-level crime, not some pressing matter of national security. If Google is happy to turn over data in a case like Skillern’s, there is no reason why it won’t do the same in any other case, whether it’s evidence of a drug transaction, a conspiracy, or any other crime that Google deems worthy of its corporate attention.

"PhotoDNA" analysis of an image. Photo via Techcrunch.

“PhotoDNA” analysis of an image. Photo via Techcrunch.

Some blogs disagree.  Techcrunch claims that Google does not “actively or passively (through automated means) scan users’ email accounts for other types of criminal activity, like planning a robbery, for example.”  To which the obvious response is: “how would we know what Google does?”  And, further, “why wouldn’t Google do this?”

If child porn evidence is worth turning over, why not turn over evidence of murder, or child abuse, and so on? If there’s anything one knows with certainty as a criminal defense attorney, it’s that very few people would protest if Google went ahead and turned over all data of any potentially criminal activity to law enforcement.  The public races into the arms of authority with scarcely a second thought, and would only praise Google for such action, no matter the Orwellian overtones.

Google seems to believe that its approach to this issue is justified by the particularly “awful” and “disgusting” nature of the crime involved here, at least if the comments of Google Chief Legal Officer David Drummond are any indication.  But there is no obvious stopping point to that type of judgment; nobody finds crime, of any sort, to be particularly pleasant.

Therefore it’s time for any lawyers who still are occupying the naive cloud to seek more secure quarters.  Which is a tremendous pain, because I like my gmail, and I use it constantly.  But apparently the government can do exactly the same thing, thanks to Google.

Update: An interesting addendum to this whole thing is the contrast between the pro-surveillance stance of Google/gmail and the strongly anti-surveillance approach that the now-defunct encrypted email service Lavabit took.  Lavabit shut down last year rather than hand over its encryption keys to the government, whereas Google is turning people over to law enforcement without so much as a subpoena issuing.

Update Again: My resolution to this issue, at least for now, is to use make pgp encryption available using Mailvelope.  It’s far from a perfect solution, particularly because it requires a little bit of technical sophistication for folks to use it on their end, but at least it’s an option for sensitive communication.



On the “Homicide” of James Brady: Is it Really “Murder” When the Victim Lives for 33 Years After the Attack?

2014 August 8
by Alex Coolman

I’m intrigued by the report that a “homicide” has been declared in what, to most people’s eyes, would appear to be the death by natural causes of former White House Press Secretary James Brady.  John Hinckley Jr. shot Brady in 1981, and Brady was seriously injured in the attack.  But Brady then lived for more than three additional decades before dying at the age of 73.  Is that really a “homicide”?

In California, this question would seem to be covered by CALCRIM No. 240 on causation, which says that an outcome is “caused” by an act if the outcome is “the direct, natural, and probable consequence of the act and the outcome would not have happened without the act.”  That standard wouldn’t seem to be even arguably met here, but perhaps there are more details to Brady’s medical condition that would make the argument stronger than one might suppose.

California has seen some cases involving murder prosecutions brought long after a crime occurred.  In Strong v. Superior Court (2011) 198 Cal.App.4th 1076, the defendants were convicted of murder 29 years after they shot and paralyzed the victim. Those convictions were overturned, however, based on ex post facto application of an amendment to the law that used to say that the victim had to die within three years and a day of an attack to qualify as “murder.”  (That law, Penal Code section 194, now says that there is a “rebuttable presumption” that a killing was not criminal if the victim dies beyond three years and a day after the “stroke received or the cause of death administered.”  Would be pretty easy to overcome that presumption here, but there still seems to be a lingering question of causation.)

A “Brady Index” for Problematic Police

2014 July 28
by Alex Coolman

Not long after reading about the Registry of Prosecutorial Misconduct, I came across a piece in the San Diego paper noting that the local prosecutor maintains a “Brady Index” file on a handful of police officers who it considers to be untrustworthy or otherwise likely to cause problems on the witness stand.  The list is not public.  However, for the same reason that the Registry of Prosecutorial Misconduct is useful, a public “Brady Index” might not be a bad idea.

Edit: Thanks to Google, I note that the Cato Institute maintains the National Police Misconduct Reporting Project.  The project appears to have some of its information in database form, but only for certain years.  The project’s blog can be searched by city, so it could be a helpful source for defense lawyers.

The Habeas Argument of Hamid Hayat

2014 July 21
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by Alex Coolman

What happens when an inexperienced attorney who has never handled a criminal trial ends up defending a man accused of participating in a terrorist training camp in Pakistan?

If you said “ineffective assistance of counsel” you’re right, or at least that what the lawyers for Hamid Hayat, led by Dennis Riordan, are arguing in a petition for habeas corpus filed in the district court for the Eastern District of California.  The interesting thing about the case, from my point of view, is the way the habeas argument brings to light all the things that an effective lawyer could have done that would not be apparent from the cold appellate record.  In this case, those things include asking for funding for investigators, travel expenses, and the other tools that would have shown that the government’s story about what Hayat did in Pakistan was very unlikely to be true.  In the absence of that work, and facing serious charges at a time — 2006 — when the mere mention of “terrorism” was an extremely potent prosecutorial tactic, Hayat was a sitting duck.

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