Posts Tagged ‘Due Process’

Correct, but Wrong: SCOTUS on Unreliable Eyewitness Identification

Thursday, January 12th, 2012

In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.

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No, what Perry could have argued for is either (more…)

Insider Trading, Expert Networks, and a Big Honking Due Process Violation

Wednesday, March 2nd, 2011

 

 

First, a shameless plug: Tomorrow, we’ll be participating in a Dow Jones webinar for Private Equity and VC types, discussing how the current environment of insider-trading prosecutions affects them, and what they might do about it.  (Link here, if you’re interested.)  Of course, those guys aren’t so much the focus these days as, say, hedge funds and the expert networks that help them make investment decisions.  “In the spotlight” doesn’t begin to describe it.  Not a week goes by without some major news about insider trading allegations in the hedge fund world.

With all that reporting, and all the various cases that are going on, one might think the issues are pretty well understood by now.  But they’re not.  Not even by the very people who are doing the prosecuting and investigating, it seems.  It so unclear that a month ago the Managed Funds Association formally asked the SEC for guidance on what is and is not kosher when dealing with expert networks.  “Our industry would like to know where the sidelines are right now so that we can stay well within them,” MFA president Richard Baker said at the time.  “The trouble is the referees aren’t quite clear where those lines are.”

Amen.  Nobody knows where the line is between lawful and unlawful conduct.  The feds themselves admit it.  And yet they are prepared to prosecute people for crimes, when the public has no way of knowing that such conduct was criminal.  Even an investigation is enough to destroy a reputation, wipe out a career, erase a business.  A conviction will take away a real person’s liberty and rights.  Americans don’t allow their government to do that in a gray area.  But it is happening.  How that is not a serious violation of basic due process is beyond us.

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Expert networks are a fairly new thing.  It used to be that research was conducted by analysts who were more akin to investigative journalists than anything else.  They poked around, talked to people, and tried to piece together useful information about a company’s value or where an industry was headed.  The goal was to gain an insight that had value — something that wasn’t obvious to everyone else analyzing the public information.  Then along came Regulation FD, and all that changed.

Reg FD came about in 2000 as an attempt to (more…)

Dear HuffPo: Here’s why we have statutes of limitation

Friday, April 23rd, 2010

 

So we took a few minutes just now to check out some headlines with Google’s “Fast Flip” news browser (which, by the way, is super-cool). And this headline totally caught our eye: “Some Sex Crimes Get a Pass – Why?”

That’s a damn good question! What do you mean, some sex crimes don’t get prosecuted — that’s appalling! Either the crime is something society doesn’t think worth punishing, or prosecutors aren’t doing their job! So we checked it out.

What we found instead was a totally inane article on the Huffington Post, leading off with the following lines: (more…)

No, Virginia, You Can’t Get Around the Confrontation Clause by Shifting the Burden of Proof

Monday, January 4th, 2010

On June 25 last year, the Supreme Court held in Melendez-Diaz v. Massachusetts that in a drug case the prosecution can’t simply use a sworn lab report to prove the existence of a controlled substance. If the chemist doesn’t testify, it violates the Confrontation Clause. (See our previous post about it here.)

Four days later, on June 29, the Court granted cert. in Briscoe v. Virginia, to decide whether the states can get around this requirement if they permit the defendant to call the lab analyst as a defense witness. Oral arguments are scheduled for next Monday, and we can’t wait to hear how the Commonwealth of Virginia tries to make its case.

It seems to us that there is an obvious burden-shifting problem here. The state, and only the state, has the burden of proving every element of the crime. Since the Winship case in 1970, this has been a due process requirement of the Constitution. Unless he asserts an affirmative defense, the defendant has no burden to prove a thing.

So the prosecution has to prove an element. It needs a forensic test to prove it. It needs the testimony of the analyst to introduce the results of that test. The defense does not have a burden to prove anything, one way or the other, about the test.

But Virginia wants to be able to prove its case using only the lab report, and get around the Confrontation Clause by saying the defense is allowed to call the analyst if they want to confront him.

First, who cares whether the state allows the defense to call the analyst or not? Last time we checked, the defense could call any witness they chose, by subpoena if need be. The defense always has the opportunity to put the analyst on the stand as a defense witness. This “permission” doesn’t actually give the defense permission to do anything it couldn’t already do. All it does is imply wrongly that the defense couldn’t have done so otherwise.

Second, the state cannot impose a burden of proof on the defense like this. Virginia’s scheme essentially precludes the defense from challenging the state’s evidence during the state’s case. It forces the defense to act affirmatively and put on a defense case in order to challenge the state’s evidence. That’s a big due process violation.

Third, the state does not get around the Confrontation Clause by shifting the burden to the defendant to call those witnesses it wishes to confront. In a murder case, it would absurd to let the prosecution introduce an eyewitness’s written account of what happened, and no more, so long as the defendant himself could have called the eyewitness if he wanted to. That’s indistinguishable from what Virginia wants to do.

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Lots of prosecutors’ offices are hoping that the Supremes will side with Virginia on this one. Particularly in the more amateurish offices, there is a feeling that the Melendez-Diaz decision imposes too great a cost on the criminal justice system, and imposes unworkable inefficiencies, by requiring chemists to take time off from their busy jobs to testify at trial. An amicus brief filed by half the nation’s attorneys general makes these arguments.

But just look here at New York City, the busiest criminal courts and crime lab in the world. Lab reports are used in the grand jury, where there is no confrontation right, but the chemists themselves must testify at trial. Somehow, this requirement has not bankrupted the city. Getting the chemist to show up is just one more minor hassle that prosecutors have to deal with, no more challenging than getting cops to show up. The requirement is so minor that nobody really thinks about it.

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Still, Melendez-Diaz was a 5-4 decision. And one of the five, Justice Souter, has been replaced by former prosecutor Justice Sotomayor. So people are thinking that she’s going to be more pro-prosecution here, and help the Court either reverse or severely limit that decision.

We don’t think so. We’d remind Court observers that Sotomayor came out of the Manhattan DA’s office, not one of the “amateur hour” offices. Her own personal experience is that requiring the chemist to testify at trial is really no big deal.

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So we’re looking forward to the oral arguments next week. If Scalia gives as good as he did in last June’s decision, and if we’re right about Sotomayor, then Virginia’s in for a spirited beatdown.

Supreme Court Noir

Tuesday, December 8th, 2009

Roberts Noir

The Chief was at it again.

Everyone had their theories. J.P. said the Chief had lost it, gone soft in the head. Nino thought he was just having fun. Sam didn’t say anything, so he was probably in on it.

None of us thought it made any sense, though. Except me. I had my own ideas. What the Chief was doing made perfect sense, if anything can make sense in this world. He was like me.

No, not like me. I only have contempt for the tedium, the routine drudgery the rule-boys keep feeding us. The Chief wanted to do something about it.

But his methods… Like some Frankenstein, trying to animate the dead… Well, maybe he was more like me than I imagined.

While sipping a cup of last night’s coffee, I decided I liked it. I silently congratulated the guy, and wished he’d keep it up.

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At the beginning of the ’08 term, Chief Justice Roberts sparked a miniature kerfuffle when he opened a decision with a factual recitation in the style of Hammett or Spillane. It wasn’t half bad, and it certainly got the facts across without losing the reader’s interest. But it wasn’t at all what we’re used to reading in Supreme Court opinions. So one heard comments and criticisms in the corridors and over cocktails, for a few days anyway. But people got over it. After all, it was only a dissent to a denial of cert, and who even reads those? It’s probably the one kind of opinion where a justice could get away with a bit of fun. It was just a one-off, let it go.

Except it wasn’t just a one-off. It was just the beginning. Since then Roberts has kept at it, putting a bit of dramatic flair into his opinions. Particularly, it seems, in cases that aren’t all that dramatic to begin with.

Take today’s opinion, for example, in Beard v. Kindler. The issue couldn’t be more boring — whether a discretionary ruling on state procedure is something that can be pursued in a federal habeas claim. The case has nothing to do with the underlying facts of the case, but instead inquires into whether the state courts had regularly followed that procedure, and the general policy arguments for and against allowing habeas.

Yawn. If Dirty Harry or Mike Hammer were here, they’d be shooting or punching someone. They’d deal with the tedious legal processes and technicalities, but on their own terms.

And so did Chief Justice Roberts. He dealt with it on his own terms, in his own way, by opening his decision with a lengthy and dramatic recitation of the underlying events — events that have absolutely nothing to do with the discrete legal issue before the court.

Roberts told the gritty story of Joseph Kindler, which itself seems made for TV or a pulp novel: In 1982, Kindler and two associates robbed a store, only to get caught during the getaway. “In a harbinger of things to come, Kindler escaped.” When one of the associates agreed to testify against him, Kindler and the other one bludgeoned him almost to death with a baseball bat, shocked him repeatedly with a cattle prod, threw him in the trunk, hauled him to the river, tied a cinderblock around his neck, and threw him in the river, where he died of drowning and massive head injuries. He was convicted of murder, the jury recommended execution, but before sentencing Kindler escaped. Using smuggled tools and a lot of help from other inmates, he sawed through the bars of his maximum-security prison, and fled to Canada. He got caught there committing more crimes. Canada refused to extradite him, because he faced execution, and Kindler became a minor celebrity, going on TV and everything. Eventually, however, Canada agreed to extradite him, whereupon he promptly escaped again. With the help of his fellow inmates, he broke through a skylight in a high ceiling, climbed to the roof, then rappelled down a rope made of 13 bedsheets. Kindler made it, but when another tried to follow the sheet ripped, and he fell 50 feet to his death. Kindler was caught again after America’s Most Wanted did a segment on him. Several years later, he was eventually extradited back to the U.S. In the meantime, the state court had long since dismissed his original sentencing motions, as he had escaped before they were decided. The case has been going back and forth on appeal over that dismissal, ever since. The original arrest was in 1982.

Roberts tells it much more entertainingly than this, of course. But almost none of that was necessary or even relevant. It could just as easily have been replaced with “A jury convicted Kindler of capital murder for the brutal slaying of a state witness. The jury recommended a death sentence, and Kindler filed postverdict motions. Before the trial court had considered the motions or the jury’s death recommendation, Kindler escaped. While Kindler remained a fugitive, the trial court dismissed his postverdict motions. Seven years later, Kinder was returned to court, and moved to have his motions reinstated. The trial court found that the original judge had not abused his discretion, denied the reinstatement motion, and imposed the death sentence.”

Frankly, we like it Roberts’ way better.

And we hope he keeps it up, particularly in the more humdrum cases. It does no harm, and it might even keep one or two young associates from nodding off during some tedious night of research down the road.

Ninth Circuit Bungles Math, Can the Supremes Fix It?

Tuesday, September 1st, 2009

Prosecutor's Fallacy

The “Prosecutor’s Fallacy” is one example of why we think Statistics should be a required course in college. Let’s say the police have the DNA of a rapist. Only 1 in 3,000,000 people chosen at random will match that DNA sample. Your DNA matches. At your trial, the DNA expert testifies that you have only a 1 in 3,000,000 chance of being innocent. That is not correct, however. That’s an example of the Prosecutor’s Fallacy.

Yes, there is a very small chance that someone’s DNA would match if they were innocent. But that is not the same as saying there’s a very small chance that someone is innocent if their DNA matches.

This is basic conditional probability. And if you think about it, it’s just common sense. What you’re doing is switching the conditions around, and leaving the result unchanged. You can’t expect to change the conditions and not change the result.

To illustrate with an extreme example, we drew the picture you see above. A black circle indicates a DNA match. All guilty people are going to have a DNA match, obviously. And a tiny fraction of innocent people are going to have a DNA match, as well. But if the number of innocent people is large enough, then the number of innocent people whose DNA matches could actually be larger than the number of guilty people. Someone whose DNA matches is actually more likely to be innocent in that scenario.

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Prosecutors and DNA experts aren’t the only ones who get this wrong. Courts do, too. The Ninth Circuit recently made a hash of it in their decision in McDaniel v. Brown, which will now be one of the first cases to be heard by the Supreme Court at the start of this year’s October term.

In McDaniel v. Brown, Troy Brown was prosecuted for the alleged rape of a little girl. The facts are pretty gruesome, but irrelevant here. What’s relevant is that, at his trial, the DNA expert testified that Brown’s DNA matched the DNA in the semen found on the girl, that there was a 1 in 3,000,000 chance that someone’s DNA would match, and that therefore there was a 1 in 3,000,000 chance that Brown was innocent.

Brown got convicted. He later brought a habeas petition to the District Court. He introduced a professor’s explanation of how the prosecution had screwed up. The District Court expanded the record to include the professor’s explanation, and found that the DNA expert had engaged in the Prosecutor’s Fallacy. In part because of that (there was also a chance it could have been his brother’s DNA), the District Court found there wasn’t sufficient evidence to convict.

The government appealed to the Ninth Circuit.

Now, the Ninth is known for being touchy-feely. It’s not known for its analytical prowess. Posner, they ain’t. But they bravely tackled this statistical conundrum. And they screwed up.

In trying to deal with the prosecution’s error, the Ninth swung too far in the other direction, finding that the DNA evidence at Brown’s trial couldn’t establish guilt, period. No jury could have found Brown guilty.

So the government took it to the Supreme Court, making two arguments. One is procedural — that the habeas court shouldn’t have been able to consider the professor’s explanations, but only the trial record, in determining the sufficiency of the evidence before the jury. The other argument is that even though the chances of Brown being innocent weren’t 1 in 3,000,000 they were still pretty damn low, and the DNA evidence is still plenty sufficient.

Brown’s lawyers, to their credit, don’t seem to be arguing that the Ninth Circuit did it right. Instead of characterizing the decision below as ruling on the sufficiency of the evidence, Brown’s attorneys argue that it was really a Due Process ruling. The testimony wasn’t so much insufficient as it was incorrect. It was unreliable. This is bolstered by the fact that the Ninth Circuit ordered a new trial (which Double Jeopardy would preclude after a finding of insufficient evidence, but which is standard after a Due Process finding of unreliable evidence.)

That’s not the way the Ninth characterized its ruling, however, so Brown wisely suggested that the Supreme Court might simply kick the case back for the Circuit to explain its ruling better.

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Oral arguments are scheduled for October 13. We haven’t made any predictions yet about the upcoming term, so we’ll start here.

We think the state will convince Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Ginsberg and Alito of the following:

(1) The Ninth Circuit improperly remanded for a new trial, which is improper after a finding of insufficiency; and

(2) At any rate, the Circuit improperly found the evidence to be insufficient, when there was plenty of evidence of guilt.

We think that Justices Stevens and Breyer (we have no clue about Sotomayor) will dissent, arguing that the jury was totally thrown by the DNA expert’s mischaracterization, that this was a Due Process violation at the very least, and that the DNA evidence probably should have been thrown out entirely, so the Ninth Circuit should be reversed and the District Court’s original ruling should be reinstated.

What are the odds that we’re really right? Who wants to do the math?

Why Liberal Justices Agree that “Reverse Batson” Error Doesn’t Violate Due Process

Tuesday, March 31st, 2009

supreme-court.png

In a unanimous decision this morning, the Supreme Court ruled that “there is no freestanding constitutional right to peremptory challenges,” during jury selection in criminal trials. So even if a judge erroneously refuses to let a defendant challenge a juror, so long as that juror couldn’t be challenged for cause, there is no constitutional violation if that juror is seated.

This was an important case, as the issue really had never been decided before. It may perhaps be surprising that even the more liberal Justices agreed with such an important and apparently anti-defendant ruling as this one. But it really makes sense if you think about it. First, a quick summary of the case:

Writing for the unanimous Court in Rivera v. Illinois, Justice Ginsburg put the issue pretty well in her opening paragraph: “If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction?”

Michael Rivera was on trial for first-degree murder. During jury selection, each side was allowed to make peremptory challenges to potential jurors, who otherwise could not have been excluded for cause. Rivera’s lawyer, having already exercised two peremptories against women, now made a third challenge against a female.

The trial judge, said no way, finding sua sponte that the defense was excluding jurors on the basis of sex in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The juror was seated, and was then selected as the foreperson of the jury. The jury convicted Rivera, and sentenced him to 85 years in prison.

Rivera appealed, saying that the peremptory challenge should have been allowed, and that the error required reversal. The state supreme court decided that any error in seating the juror would have been harmless.

On appeal to the U.S. Supreme Court, Rivera first argued that the erroneous denial of a peremptory challenge means the jury contains someone who shouldn’t have been there, so the jury is illegally constituted, and therefore its verdict is per se invalid. The review shouldn’t be for harmless error, because nobody knows what a proper jury would have thought, and so reversal must be required.

The Court didn’t buy those arguments. Peremptory challenges aren’t guaranteed by the Constitution, but instead are permitted by individual state laws, and are merely “a creature of statute.” States can and do prohibit them altogether. So even a mistake as alleged here wouldn’t rise to the level of a constitutional violation.

The Due Process Clause of the 14th Amendment doesn’t elevate the state law to a federal concern, either, because that Clause only protects fundamental fairness in criminal trials. It does not protect the mere “meticulous observance of state procedural prescriptions.” An error of state law isn’t automatically a Due Process violation. And to hold now that a one-time, good-faith misapplication of Batson violates Due Process would probably create the wrong incentive, and make judges less likely to apply Batson in future cases.

So, focusing on fundamental fairness, Ginsburg concluded that the judge’s refusal to reject the juror didn’t have any effect. Rivera’s right to a fair trial before an impartial jury wasn’t affected, because everyone agreed that none of the jurors could have been removed for cause, and none were biased. So it doesn’t matter whether a different panel might have decided differently. All that matters is that the jury did not violate the Sixth Amendment right to an impartial jury.

The Court also rejected “the notion that a juror is constitutionally disqualified” just because she was aware that the defendant had challenged her. Rivera got a fair trial, with an impartial jury, so he got “precisely what due process required.”

The Court’s decision was not only unanimous, but strongly stated. This may have come as a surprise to Court-watchers who might expect some of the more liberal Justices to argue in favor of more rights for criminal defendants.

However, it could not have been a surprise to any who witnessed the oral arguments. Those very Justices on whom Rivera probably relied were his harshest critics. Ginsburg expressed disdain, calling the argument that a wrongly-seated jury is per se invalid “quite a stretch.” Souter pointed out that the Illinois Supreme Court gets to interpret its state law, not the U.S. Supreme Court, and Illinois had held that there wasn’t a violation in the first place. Breyer observed that Rivera’s arguments would create a huge “slippery slope” of making a constitutional issue out of every potential jury defect. Kennedy accused Rivera of making a sweeping proposition requiring massive supervision and intrusion of state courts by federal courts. Ginsburg and Souter also aggressively challenged Rivera’s interpretation of the facts and the decision below. Stevens even suggested that the Court didn’t have jurisdiction to review the case in the first place.

By the end of the argument, it was clear that Rivera was going to lose this one badly. Kennedy’s last question, to the U.S. Government’s lawyer, was essentially along the lines of “you’re going to win, but there are lots of alternative ways we could rule in your favor, so which one do you think is the most straightforward?”

Apart from the clues at oral argument, this ruling shouldn’t really be a surprise to anyone familiar with the ever-evolving law of peremptory challenges. Swain said systematically excluding members of the defendant’s race from the jury pool violates the defendant’s rights. Batson and its progeny expanded the rule to say that prosecutors who exercise peremptories to discriminate against any race or sex (not just the defendant’s) violate, not the defendant’s rights, but the rights of the public to serve on juries (though the penalty benefits not the public but the defendant). J.E.B. v. T.B. extended that rule to say defendants can’t violate the public’s rights any more than prosecutors can (the “reverse Batson” rule).

These cases show that the balance has shifted — away from protecting individual defendants from discrimination that keeps people like them out of the jury box, and towards protecting a generalized state interest in protecting society from the kinds of discrimination we don’t like.

So the Court wasn’t about to stand in the way of the arrow of history, by imposing a rule that would be a disincentive to courts, discouraging them from stopping discrimination.

Looked at that way, it’s hardly surprising that the more liberal Justices were the ones most antagonistic to the defendant in this case. Ruling in Rivera’s favor would have meant undoing liberal protections against general discrimination in society. There was no concrete reason to think Rivera’s jury was actually unfair, so there was no strong sentiment in his favor. The liberal interest in societal justice simply outweighed any concerns for individual fairness here.