Archive for March, 2010

Double Jeopardy Deadlock

Monday, March 29th, 2010

 

The Fifth Amendment says a person can’t be prosecuted twice for the same offense. So after a jury comes back with a verdict, if the government doesn’t like that verdict, then too bad, it doesn’t get a do-over. This is called “Double Jeopardy,” from the language of the Amendment saying you can’t “be subject for the same offense to be twice put in jeopardy of life or limb.”

Sometimes, Double Jeopardy applies even when the jury never reached a verdict. Usually, if the judge declares a mistrial, there’s no jeopardy problem and everyone does the trial over again. But there are exceptions, such as when the mistrial was caused by prosecutorial misconduct. Or when a judge orders a mistrial for no good reason. There’s a presumption that judges shouldn’t go around declaring mistrials, that cases should be allowed to go to verdict. So when a judge calls “mistrial” for no good reason, the defendant isn’t going to be forced to go through the whole thing all over again.

[Aside: We had that happen in one of our cases, when we were a prosecutor. In the middle of a drug trial, we were severely injured in a motorcycle accident (and by “severely,” we mean “it took 6 weeks to stabilize to the point where they could do surgery to put the bones back in”), and as a result we couldn’t finish the trial. Drug cases being all pretty much alike, and prosecutors being pretty much fungible, the DA’s office sent over another lawyer to finish out the case. The judge instead declared a mistrial, over the objections of both sides. The office wound up having to consent to dismissal on Double Jeopardy grounds. Whaddayagonnado.]

Back in 1824, the Supreme Court ruled in U.S. v. Perez that one good reason the judge can declare a mistrial is when the jury is deadlocked. When the jury cannot reach a decision, it’s not like the defendant’s being screwed by an unfair judge or an abusive prosecutor. So a judge is allowed to ask for a do-over with a different jury.

“To be sure,” the Court said, “the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious cases….”

-=-=-=-=-

So that brings us to the case of Renico v. Lett, argued this morning before the Supreme Court (you can read the transcript here).

Reginald Lett was on trial for murder. The case was presented intermittently, five days out of two weeks, and the jury finally got to start deliberations at 3:24 p.m. on a Thursday. They deliberated for 36 minutes, then went home. On Friday (the 13th), they came in, deliberated for a mere four hours, and sent out a note. The note didn’t say they were deadlocked, but merely asked what would happen “if we can’t agree? Mistrial? Retrial? What?”

The judge brought the jury out and asked “is there a disagreement as to the verdict?” The foreperson said yes. The judge badgered the foreperson a bit, insisting on her predicting whether the jury could reach a unanimous verdict, and finally the foreperson said “no.” The judge immediately declared a mistrial.

Now this was highly unusual. Most judges, in our experience, give a supposedly deadlocked jury a few chances to go back and reach a verdict (three seems to be the magic number here in New York City). We’ve had jurors shouting at each other so loud that everyone could hear them plainly out in the courtroom. All that meant to anyone involved, however, was that they actually were deliberating. A zesty exchange of ideas is still an exchange of ideas.

At some point, either the second or third time the jury says they’re deadlocked, the judge will give an Allen charge. Basically, the jurors are told something like “everyone’s been working their asses off on this case for a long time, costing a shitload of money, and you jurors don’t seem to be holding up your end of the deal. If you can’t do your job, everyone’s going to have to do it all over again with some other jurors, who’ll have to deal with the same stuff you are. Now, take all the time you need, and don’t change your mind without good reason, but get back in there and someone change their mind so we can all go home.” (Ed. note: citation required.)

Depending on who your jurors are, this can be good or bad for the defendant. Generally, whoever’s side the holdout was on, loses.

But the judge in Renico v. Lett never did any of that. Hell, the jury never even said it was deadlocked to begin with. All the jurors wanted to know was (more…)

Bacterial Fingerprinting? Don’t Hold Your Breath

Wednesday, March 17th, 2010

bacteria

Over the past couple of days, the news has been filled with stories about using microbes to identify suspects. Everyone has all kinds of bacteria all over their bodies, of course, and whenever you touch something you leave a smudge of your bacteria behind. On Monday, researchers at CU-Boulder published a study where they swabbed computer keyboards, tested the DNA of the bacteria they found, and saw that those bacteria’s DNA more closely matched the bacteria on the computer users’ skin than the bacteria on other people’s skin.

That’s all the study found. The bacteria on your keyboard have DNA that more closely matches the DNA in the bacteria on your fingers, than that of bacteria on other people’s fingers. Frankly, although that’s a nifty result and the scientists deserve to be praised for their work, it’s really a very modest finding. Not exactly earth-shaking.

But as usual, the media took this modest finding and blew it way out of proportion. The study’s authors insist that the project “is still in its preliminary stages.” The media make it sound like we’ll be seeing this stuff in court before we know it. The fact is that using microbial DNA to link a suspect to a crime scene is not going to be a reality any time soon, if ever.

For one thing, there is as yet no reason to conclude that your particular bacteria are as unique as your fingerprints or your personal DNA. Bacteria do not use sexual reproduction, after all, and so their DNA is less diverse than human DNA. The uniqueness of your bacteria is very much an open question.

We don’t even have a baseline of what bacteria are even normal to find on human bodies. A single person will have a huge variety of different microbial populations on different parts of his skin — the microbial mix on his fingertips is not the same as the mix on his nose or his toes. All the various types of bacteria people can have will need to be isolated, all the different DNA each kind of bacterium can have will need to be sequenced, all the various combinations will have to be analyzed, and a massive amount of comparisons will have to be made.

In other words, there will need to be many more studies, based on way more data, plus some pretty robust statistical analyses of large populations, before any scientist can reach the same conclusions as those you’ve been reading in the news. That’s going to take a very long time, even with the accelerating advances in DNA sequencing technology.

Still, it really is an intriguing idea. After all, a perpetrator may not leave behind any blood, sweat or tears. Fingerprints may not be obtainable from fabric or wiped surfaces. But he may still leave behind a smudge of (more…)

Imperial Torture Memo Declassified

Tuesday, March 16th, 2010

galactic empire

And now for something completely frivolous.

-=-=-=-=-

Galactic Empire Imperial Security Bureau
Office of Legal Counsel

[3/15/03 ABY]

MEMORANDUM TO CENTCOM ISB

Re: Interrogation Branch Treatment of Rebel Combatants

You have commanded this Office to examine the legal standards governing interrogations of terrorist “rebel” combatants in Imperial custody. You have specifically directed that we examine both current Imperial law and former Republic law that might apply.

An earlier draft of this memorandum, recommending the humane treatment of prisoners for the combined purposes of propaganda and more reliable intelligence, was rejected prior to submission. (See incident report, D. Vader, anoxic demise of Cpt. Jorad 2/5/03.)

It is the conclusion of this Office that the Emperor’s protections generously extended to his adoring subjects do not extend to rebel combatants, who have rejected those protections. This may at first seem contrary to the principle of general applicability, that the Emperor’s laws apply to all within the galaxy, whether they consent to such laws or not. However, that would be a misconstruction when applied to the interrogation of enemy combatants during an ongoing armed conflict. Detaining and interrogating enemy combatants is an important element of the Emperor’s authority to defend the Empire, its institutions and its subjects.

The Emperor enjoys complete discretion over the conduct of war, and so no law can infringe on his ultimate authority. We presume that none seek to provoke a confrontation with the Emperor over the scope of this authority. Therefore, the law must be construed in such a way as to avoid any such conflict, by determining a reasonable alternative interpretation consistent with the Emperor’s sole authority in wartime. The Emperor therefore has the authority to adopt the recommendations contained herein, and any others he deems appropriate.

-=-=-=-=-

The situation in which these issues arise is unprecedented in galactic history. Several coordinated terrorist attacks took place in rapid succession three years ago, resulting in the destruction of a critical government edifice known as the Death Star. These attacks were brought about by a small but highly motivated organization of religious fundamentalists, purporting to serve a higher “force.” The attacks caused an unprecedented level of destruction, killing thousands of civilian workers, disrupting political and commercial activity for nearly seven days, and resulting in economic costs still being assessed. These attacks were merely the latest in a violent campaign that had been continuing for several years.

Under all standards of intergalactic law, the Death Star attack triggered the Empire’s right to use force in self defense. (See, e.g., Article 51 of the nonbinding Local Group Charter.) The galaxy is now in a state of war.

Leaders of the Rebellion remain at large, with access to active terrorist cells, suspected former “Jedi Knights,” and other resources. It has been reported that they are regrouping for another coordinated strike against an Imperial (more…)

News Flash: Clients Value Trust More Than Ability

Monday, March 15th, 2010

trust bunny

Over at our favorite blawg Simple Justice, Scott Greenfield has an intriguing discussion about how clients and lawyers often have very different ideas about what makes a good lawyer. “Crappy lawyers,” it seems, will still have “happy clients” when the clients can’t tell the difference between “likeable” and “competent.” But “likeable vs. competent” is a false choice. Really, clients are looking for something else.

We have to admit to being perplexed at times by the things our clients are most grateful for. In court this morning, for example, a client was gushing with praise — not because we’d won an important victory that would get him back on the street, but because we’d bothered to go back to the cells to explain it all to him afterwards. For one thing, we’ve always figured it’s just common courtesy to make sure one’s client knows what’s going on, and it’s weird to be commended for mere manners. But more importantly, what mattered to this client was not the skill of his lawyer, but a feeling of personal attention. The victory he literally shrugged off, but he couldn’t stop talking about how much our discussion afterward meant to him. This happens routinely.

But most of our clients are more sophisticated. What they want in a lawyer is not someone who’ll hold their hand, but someone who can get the job done. They have complex cases, and they know what skills and experience to look for (and insist upon). But even among these kinds of clients, attorney expertise is often secondary to other concerns. Reputation, price, the knowledge that someone else is taking care of it for them, even the satisfaction of knowing you’ve retained the most expensive firm in town — all of these things can and do trump the mere ability to do the job better than the next guy.

But no matter what the client values most, it’s all really the same thing. Clients who love the incompetent clowns, just like the clients who value prestige or convenience, just like the clients who value experience and ability — there are all kinds of things clients say they’re looking for, but what they’re really looking for is someone they can trust.

-=-=-=-=-

Trust really is the key, we think, to client feelings about their lawyers. Trust can be earned with proven ability, but it’s not the only way. Nor is it even the best way. After all, being good at your job does not equate to people knowing you’re good at it, or even knowing you exist.

People trust others for a lot of different reasons. But they all boil down to a shared personal (more…)

What Not to Say at Sentencing

Wednesday, March 10th, 2010
Monica Conyers arriving at court for sentencing

Monica Conyers arriving at court for sentencing

Former Detroit councilwoman Monica Conyers, the wife of U.S. Representative John Conyers, was sentenced today in federal court on her guilty plea to charges of bribery. The 45-year-old was given 37 months in prison, the top end of the agreed-upon Guidelines range.

Having read the sentencing minutes, we can’t help but think she might have done better if she’d kept her mouth shut. There are some things one does not say during one’s sentencing. She seems not to have gotten the memo, and it may be that others out there don’t know either. So here are some tips:

First, do not imply that the judge is acting improperly, before the judge has even sentenced you. Don’t even hint that the judge is taking things into account that he should not be. For example, it is not a good idea to say “the newspapers have put pressure on you to try to make an example out of me.” Judges do not like to be told they’re committing an impropriety. You do not want to piss off the person who is about to decide your fate.

Seriously, people need to be told this?

Second, do not say it’s unfair that you’re going to jail, when the other people committing crimes with you got less time. If you’ve pled to taking bribes (Conyers admitted taking multiple payments in return for awarding a contract), it doesn’t matter what happened to anybody else. The only consideration is what you did, and what you deserve. So saying “all of the people who were bribing and giving the money, they got zero months, eleven months, and now they want me to go to jail for five years?” — that’s not really going to help you out. All you’re doing is calling the judge unfair to his face. And it’s irrelevant at best.

That leads right to point 3: If you’ve just got done saying you should get the same time as your fellow conspirators, it’s not a good idea to then insist that you’re innocent and your plea was involuntary. Arguing in the alternative, at least in criminal cases, only means both alternatives are wrong. Pick a story and stick with it.

Point 3-A is that you don’t react to sentencing by demanding your (more…)

Coming Soon: Full-Genome DNA Analysis

Tuesday, March 9th, 2010

This is amazing. Sequencing an entire human genome is now going to be cheap and fast. We predict this will be a game-changing technology for the use of DNA technology.

Right now, DNA evidence is looked at much like fingerprint evidence. With fingerprints, law enforcement doesn’t compare every single ridge and whorl to see if there’s an exact match. Instead, particular locations are compared, to see if those locations are the same. And there’s a lot of subjective interpretation that is needed to make that call. DNA evidence is no different. The entire DNA sequence is not compared. Instead, a handful of locations are compared, to see if the DNA at those locations is the same. And there’s a lot of subjective interpretation that is then needed to make that judgment call. This can call DNA evidence into question, particularly when there are mixtures, degraded samples or equipment glitches that create room for errors of judgment.

If one were to compare the entire genome, however — all 3.3 billion base pairs of it — there would be much less room for interpretation and error.

The problem is that sequencing an entire genome has, to date, been prohibitively expensive. The first genome was a massive undertaking. As of 2009, only 7 people’s genomes had ever been sequenced. The time and expense needed to compare the genomes from a bit of evidence and from a single suspect would take forever and cost a huge amount of money. It’s just not practical.

But if the new technology announced in this WSJ video is for real, all that could change very soon.

If the technology is available to analyze and compare all 3.3 billion base pairs rapidly and cheaply, the current system of comparing 9 or 10 or 13 loci will be woefully inadequate. The current system relies on interpretations that can be incorrect, and statistics that can very easily be (more…)

DNA Evidence: Good Science, Bad Results

Monday, March 8th, 2010

electropherogram-mixture

A couple of weeks ago, we taught another CLE course for the good folks at West Legal Ed Center, in our “Hope for Hopeless Cases” series. This one was on ways to defend cases where the government is going to use DNA evidence to prove your client’s guilt. (Here’s a link.)

DNA evidence can be just devastating. The science is good, after all. And to a lot of potential jurors (and judges and lawyers, unfortunately), “science” is another word for “magic.” Which is another word for “I don’t have to understand how it works, all I know is that it must be so.”

This can often be a wonderful thing, when the science is used correctly, and for the limited purposes to which it is suited. When used correctly, DNA evidence can free the innocent, and help ensure that we really are only punishing the guilty.

The problem is, DNA evidence is all too often used wrong.

And when that happens, the wrong people can get convicted.

-=-=-=-=-

And now today we read a good article in the latest Washington Monthly called “DNA’s Dirty Little Secret: A forensic tool renowned for exonerating the innocent may actually be putting them in prison.” (Link here.)

It’s a good article, about the case of John Puckett, who was convicted in 2008 of an old murder from 1972. It was a brutal rape and murder, with about 20 suspects at the beginning, but the case went cold. Then in 2003 the police tested the DNA found in the evidence. It was old DNA and degraded, and it was also a mixture of multiple people’s DNA. The results were compared to California’s DNA database, and there was a possible match with Mr. Puckett. He hadn’t been a suspect in 1972, but based on this apparent match — and on nothing else — he was prosecuted and ultimately convicted. Jurors have since said that they convicted because of the statistical odds quoted to them at trial, and that if they had known the stats of false positives — which were one in three — they never would have trusted the government’s stats like that.

The article highlights the fact that DNA evidence may be based on good science, but by the time it gets to a jury it can be seriously flawed. Contrary to popular belief, DNA evidence is not objective. It involves a huge amount of subjective interpretation and judgment calls. And whenever human beings have to interpret data and make judgment calls, there is a lot of room for reasonable doubt.

-=-=-=-=-

Contamination, of course, can be a huge issue. Cops screw up when they collect biological evidence, when they stick it in evidence bags, and when they ship it off to the lab. There’s all kinds of opportunities in the real world for a suspect’s DNA to get mixed up with the evidence sample. We’ve worked on at least two cases in the last six months where that is exactly what seems to have happened.

But leaving aside contamination, there are all kinds of ways that experts can look at DNA evidence results and draw the wrong conclusion.

There are technical errors in the lab, for one thing. Sometimes they analyze the wrong evidence. Sometimes the machines doing the analysis aren’t working properly. Sometimes the lab doesn’t test control samples and negative controls, to see if the machines are working right, and whether they’re giving false positives. They almost never do double-blind analysis. Often, analysts will manually adjust the data results, adding or deleting data (!) when it doesn’t look right to them.

There are analytical errors all the time, too. They’re comparing (more…)

Criminalizing the Contractual: Have We Finally Seen the End of “Honest Services” Fraud?

Monday, March 1st, 2010

enron annual report 2000

Try this on for size:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes:

(1) a scheme or artifice by a government official whereby the government official’s position is used for the private gain of any person or entity; or

(2) a scheme or artifice by an officer of a corporation, partnership, nonprofit organization or labor union, whereby the officer’s position is used for the private gain of any person or entity and not for the benefit of the officer’s shareholders or members.

If Congress had half a brain, this is what 18 U.S.C. § 1346 would look like. The whole point of the section is to prevent official corruption. A politician or bureaucrat who steers a contract to a buddy, or a corporate CEO who enriches himself instead of his shareholders, or a union boss who mismanages the pension fund — basically anyone who breaches a trust to act on behalf of those he represents.

But instead, Congress wrote this nonsense:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.

For one thing, anyone can commit this crime, not just people who owe a duty to a constituency. Moreover, instead of a straightforward definition, this is hopelessly vague. Nobody knows what “the intangible right of honest services” means. Does it include an employee who’s playing solitaire instead of reviewing a file? Does it include a politician making promises he can’t keep?

Nobody knows.

And that’s just how federal prosecutors like it. Actual corruption charges, like bribery and extortion, are notoriously difficult to prove. But a mail/wire fraud charge, based on deprivation of “honest services” — that could mean anything, and so anything they can prove could count. Actions that don’t fit any particular category get to be called “fraud.”

Unethical behavior is now criminal. Contractual breaches, especially in the employment arena, also seem to count.

The courts have had a hard time applying this statute, differing widely on what counts and on how to instruct juries. Earlier this term, the Justices on the Supreme Court sounded like they have real problems with the statute. They seem even to wonder whether it’s void for vagueness. Criminal laws have to be specific enough to put you on notice that certain conduct could land you in jail, and a law where nobody even knows what it means certainly could be unconstitutionally vague. The Court hasn’t decided those open cases yet, presumably because they were waiting for one more to be argued.

And that gets us to today’s Supreme Court arguments in the case of Enron’s former CEO, Jeff Skilling.

-=-=-=-=-

Enron was the nation’s 7th-largest company in 2001, when it suddenly came to light that its net worth was zilch. Bright people who had no clue what they were doing had created a bizarre house of cards that came tumbling down in an instant. The city of Houston, Enron’s headquarters, was devastated for years to come. Some people had clearly done wrong — CFO Andy Fastow and friends had profited hugely from schemes that broke the rules. It was less clear, however, whether CEO Jeff Skilling had acted improperly, or whether he even knew of any shenanigans. It was hard to say that he or the directors misrepresented anything to investors, as the company’s activities were pretty well documented. (For an excellent account of what happened and didn’t happen, see Kurt Eichenwald’s definitive “Conspiracy of Fools.” Malcolm Gladwell did an excellent piece in the New Yorker, as well, called “The Talent Myth,” about the culture there, and another one called “Open Secrets,” about the paradox of too much disclosure.)

Jeff Skilling was convicted in 2006 by a federal (more…)