I hope Connecticut’s Innocence Project takes on the case of Alfred Swinton. I am persuaded that the man was convicted of murder based on bogus science. A recent report by the National Academy of Sciences confirms my opinion. This report is must reading for the anyone concerned about the reliability of evidence presented in our courts.
Alfred Swinton was convicted of murdering Carla Terry. The key piece of evidence against him was bite mark evidence. Photographs of the decedent’s breasts were digitally transposed into an electronic image. Mr. Swinton’s dental impressions where taken and then transposed onto an acetate overlay. The two images were then laid one on top of another and compared. A forensic odontologist then compared the images and pronounced them a match. The match was far from persuasive looking – ill-defined bruises corresponded to locations of teeth. They looked like bite marks, all right. But whose?
I represented Mr. Swinton at trial. I did not challenge forensic odontology as junk science. Under the liberal standards governing the admission of scientific evidence, the so-called expert had the requisite skill, training and experience. And the field had been recognized in other judicial decisions. I challenged whether the expert could give any meaningful account, or foundation, about how two-dimensional images were transposed into digital pixels for comparative purposes, the trial court disagreed. When the Supreme Court later considered the issue, it found admission of the evidence to be harmless error.
Comes now a report prepared by the National Academy of Sciences at the request of Congress. Entitled, Strengthening Forensic Science in the United States: A Path Forward, the report is a chilling read.
"With the exception of nuclear DNA analysis ... no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source," the report notes. Yet the courts are blind to these issues and routinely admit evidence lacking in validity due to the lack of training of judges and lawyers in the basic science and the scientific method.
Not long ago, I cross-examined one of the state’s top forensic scientists on how blood was tested in a hospital lab. This test was later relied upon by the state to extrapolate a blood alcohol concentration in a manslaughter case. Our defense was that the machine had produced a false positive. The expert was familiar with the device used for the testing, but not with its acceptable error rate. The jury acquitted the client of those any claims involving intoxication.
Why was this evidence even admissible? According to the NAS, "the courts continue to rely on forensic evidence without fully understanding and addressing the limitations of different forensic science disciplines." In other words, we are letting juries consider junk science when deciding on a defendant’s fate. Something is seriously wrong in the courts, and the legal standards and tests use to determine the admissibility of scientific evidence are inadequate. That’s not just me talking. That is the National Academy of Sciences.
The academy singles out forensic odontology as particularly unreliable. "Although the majority of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment, ..." Question, then why are we allowing it into evidence?
Don’t ask Dr. Henry Lee or anyone at the University of New Haven this question. Notably absent from the list of persons on the NAS panel is the ubiquitous Dr. Lee. It was a curious omission.
Reprinted courtesy of The Connecticut Law Tribune.
Thursday, February 26, 2009
Wednesday, February 25, 2009
Much Ado About Nothing In Westbrook Flap
There is no impotence so profound, and quite so deflating, as that of the professional journalist. You sit amid the powerful and potent by day. And then you rush back to the office to report on what others have done. Some cannot resist the temptation to pretend that they are a player. Thus we end up with advocacy thinly disguised as reporting.
This morning's Hartford Courant is a case in point. The paper created a tempest in a teapot this past weekend. A nominee to a judgeship, Dawne Westbrook, served for several hours on a state Ethics board in late 2008. At the time she was appointed, she was on a list of those who could be nominated as a judge. The day she was sworn in at the Ethics board, a staffer showed her a "revolving door" statute that forbade a person from taking a judgeship or other state position within one year of service on the board.
Westbrook tried to tender a resignation. The board staff recommended that she rescind her appointment. She did so. Shortly thereafter, she was nominated to serve as a Superior Court judge. Her confirmation hearing is pending this week.
On Sunday, The Courant ran a piece suggesting that Westbrook could not serve as a judge because of her afternoon's service on the Ethics board. Lawmakers heard from the nominee on Monday, and tabled her confirmation pending an opinion from the state's attorney general. That opinion was issued yesterday.
Attorney General Richard Blumenthal concluded that Westbrook had, in fact served. He further concluded that she could not rescind her application, only the appointing authority could do so. But, and this is significant, he then concluded that lawmakers were free to appoint her and to consider fully the facts and circumstances of her Ethics service. In other words, she can be appointed.
There is no conflict of interest arising from her service. The law's purpose is not served by making a fetish of formalism.
You wouldn't know that reading the Courant's story this morning. The paper reported that her nomination was in doubt. If she is appointed she may violate an ethics law, the paper reported. One wonders how closely the reporter read the attorney general's opinion.
The vote on Westbrook will take place today. The state's largest newspaper has voted, and in so doing it has signalled to lawmakers what it believes their vote should be, too. But the Attorney General's office has made clear that in the case of Dawne Westbrook it is lawful both to consider her nomination and to confirm her.
I hope she will be confirmed. No one voted for The Courant in this matter. The Fourth Estate is on a toot and making up a parallel world filled with a crisis it created and on which it will feed. It is much ado about nothing, and should be so regarded by the General Assembly.
This morning's Hartford Courant is a case in point. The paper created a tempest in a teapot this past weekend. A nominee to a judgeship, Dawne Westbrook, served for several hours on a state Ethics board in late 2008. At the time she was appointed, she was on a list of those who could be nominated as a judge. The day she was sworn in at the Ethics board, a staffer showed her a "revolving door" statute that forbade a person from taking a judgeship or other state position within one year of service on the board.
Westbrook tried to tender a resignation. The board staff recommended that she rescind her appointment. She did so. Shortly thereafter, she was nominated to serve as a Superior Court judge. Her confirmation hearing is pending this week.
On Sunday, The Courant ran a piece suggesting that Westbrook could not serve as a judge because of her afternoon's service on the Ethics board. Lawmakers heard from the nominee on Monday, and tabled her confirmation pending an opinion from the state's attorney general. That opinion was issued yesterday.
Attorney General Richard Blumenthal concluded that Westbrook had, in fact served. He further concluded that she could not rescind her application, only the appointing authority could do so. But, and this is significant, he then concluded that lawmakers were free to appoint her and to consider fully the facts and circumstances of her Ethics service. In other words, she can be appointed.
There is no conflict of interest arising from her service. The law's purpose is not served by making a fetish of formalism.
You wouldn't know that reading the Courant's story this morning. The paper reported that her nomination was in doubt. If she is appointed she may violate an ethics law, the paper reported. One wonders how closely the reporter read the attorney general's opinion.
The vote on Westbrook will take place today. The state's largest newspaper has voted, and in so doing it has signalled to lawmakers what it believes their vote should be, too. But the Attorney General's office has made clear that in the case of Dawne Westbrook it is lawful both to consider her nomination and to confirm her.
I hope she will be confirmed. No one voted for The Courant in this matter. The Fourth Estate is on a toot and making up a parallel world filled with a crisis it created and on which it will feed. It is much ado about nothing, and should be so regarded by the General Assembly.
Tuesday, February 24, 2009
Jim Calhoun: A Wealthy Thug
College basketball doesn't do much for me. So I do not come to the topic loaded with a disposition to believe that its heroes are good or admirable people. Watching University of Connecticut men's basketball coach Jim Calhoun discuss his salary at a recent press conference left me with one settled impression: He's a jerk.
The coach was up close and personal with sports writers after yet another game in which he screamed at college athletes to run, jump and shoot, faster, better and with greater skill than the other team. Sport reporters, mostly men, who must find a story in every game, sat listening to him expound. The reporters demonstrate the truth of the theory of agency capture: in a regulated industry, the regulators get a little too cozy with those whom they regulate. In the end, both end up with the same, or similar, agendas.
Out of the blue, a voice sounds out. Here's a link to the conference as shown on YouTube: http://www.youtube.com/watch?v=DJkQTzbVEq4&NR=1
The voice asks the coach about his salary, well over a million dollars per year, and about the state's budget. Before the questioner could finish, Calhoun was quick with the lip. "Not a dime back," he said. He wants to retire some day. He's tired. When the reporter pressed, Calhoun got testy. The reporter understated Calhoun's income. So the reported pressed on, asking about the value of commercial endorsements. Then Calhoun lost it. He told the reporter to shut up, and then chest-thumped about how the basketball team generates so much money for the university. Calhoun strutted as though he were the ultimate golden goose: perhaps we should simply declare him Caesar. Hail, Calhoun.
Calhoun's assertion has raised questions. He appears to have overstated the value of his contribution to the university by millions of dollars. Rather than generating $12 million a year, the real some, according to some, is half of that. One report this morning suggests the program loses money, although I find that hard to believe. There are now calls for state auditors to examine the books and see just how much cash is generated by the hoop program.
Calhoun is a new synonym for hubris. The videotape is ugly. He looks like angry bully challenged, suddenly, to justify why he always gets the biggest and brightest marbles for use during the morning recess. He came and swinging and managed to hit only himself. I have gone from something close to admiration for the man to disgust. He threw it all away with one angry outburst.
Why is Jim Calhoun earning millions to supervise young men at play? And why when folks are losing their homes, state employees are forced to take involuntary furloughs and lay-off notices are everywhere, is Jim Calhoun strutting like Ahab in search of a whale? Folks really aren't coming out to watch him flail his arms off court.
Credit to Ken Krayeske for being persistent when Calhoun tried to avoid the truth. Krayeske, close readers will know, is a client of my firm's. We sued police officers for arresting him once while he was merely photographing the governor on her inaugural parade. It turns out Krayeske was on a watch list of activists. His crime was speaking out. The case is still pending.
In the meantime, I wonder if Ken's press pass will be pulled for UConn basketball. Odds are, Jim Calhoun can't take any more heat. Poor, poor Jim. No, wait. Jim suffers an embarrassment of riches.
The coach was up close and personal with sports writers after yet another game in which he screamed at college athletes to run, jump and shoot, faster, better and with greater skill than the other team. Sport reporters, mostly men, who must find a story in every game, sat listening to him expound. The reporters demonstrate the truth of the theory of agency capture: in a regulated industry, the regulators get a little too cozy with those whom they regulate. In the end, both end up with the same, or similar, agendas.
Out of the blue, a voice sounds out. Here's a link to the conference as shown on YouTube: http://www.youtube.com/watch?v=DJkQTzbVEq4&NR=1
The voice asks the coach about his salary, well over a million dollars per year, and about the state's budget. Before the questioner could finish, Calhoun was quick with the lip. "Not a dime back," he said. He wants to retire some day. He's tired. When the reporter pressed, Calhoun got testy. The reporter understated Calhoun's income. So the reported pressed on, asking about the value of commercial endorsements. Then Calhoun lost it. He told the reporter to shut up, and then chest-thumped about how the basketball team generates so much money for the university. Calhoun strutted as though he were the ultimate golden goose: perhaps we should simply declare him Caesar. Hail, Calhoun.
Calhoun's assertion has raised questions. He appears to have overstated the value of his contribution to the university by millions of dollars. Rather than generating $12 million a year, the real some, according to some, is half of that. One report this morning suggests the program loses money, although I find that hard to believe. There are now calls for state auditors to examine the books and see just how much cash is generated by the hoop program.
Calhoun is a new synonym for hubris. The videotape is ugly. He looks like angry bully challenged, suddenly, to justify why he always gets the biggest and brightest marbles for use during the morning recess. He came and swinging and managed to hit only himself. I have gone from something close to admiration for the man to disgust. He threw it all away with one angry outburst.
Why is Jim Calhoun earning millions to supervise young men at play? And why when folks are losing their homes, state employees are forced to take involuntary furloughs and lay-off notices are everywhere, is Jim Calhoun strutting like Ahab in search of a whale? Folks really aren't coming out to watch him flail his arms off court.
Credit to Ken Krayeske for being persistent when Calhoun tried to avoid the truth. Krayeske, close readers will know, is a client of my firm's. We sued police officers for arresting him once while he was merely photographing the governor on her inaugural parade. It turns out Krayeske was on a watch list of activists. His crime was speaking out. The case is still pending.
In the meantime, I wonder if Ken's press pass will be pulled for UConn basketball. Odds are, Jim Calhoun can't take any more heat. Poor, poor Jim. No, wait. Jim suffers an embarrassment of riches.
Sunday, February 22, 2009
Connecticut Judiciary: Confirm Westbrook
Let me get all the confessions out of the way first: Many years ago, I was an editorial writer for The Hartford Courant. After that, I hired and supervised a young trial lawyer named Dawne Westbrook in a law firm in which I was a partner. She is now a friend. And I have publicly supported her nomination as a judge. Enough disclosures. Let me now come to the point:
Westbrook should be confirmed to sit as a judge of the Superior Court of the State of Connecticut. Period.
The Hartford Courant called this into question this morning in a piece of journalism that looks, frankly, like muckraking for mere purpose of, well, raking muck.
Westbrook submitted her name as a candidate for a judge more than a year ago. She was vetted and approved for consideration. Then her name lingered, as do so many, in a netherworld. She needed political backing from someone to get her name before the governor. While she waited, she kept at the practice of law and engaged in public service.
In the fall of 2008, she was asked to serve on an entity known as the Citizen's Ethics Advisory Board, an unpaid position that polices the conduct of public officials. She turned up for her first meeting on September 25. She voted a couple of times to table matters, and she sat through an executive session of the group. Then a staff member on the board handed her state statutes governing the body. She noticed that it had a revolving door provision that prohibited employment by the state for one year after leaving the board.
After consultation with ethics gurus, she submitted a letter removing herself from the board a couple days after her first and only meeting. Her career on the committee lasted for about one meeting. She did not vote on any matters of substance.
A columnist at The Courant is now raising questions. Is this an illegal appointment? Why didn't Westbrook tell lawmakers she served for an afternoon on the ethics board? The suggestion is that either she or the governor's office has been careless in putting her name too soon before lawmakers as a potential judge.
This is sound and fury signifying little more than the need to fill a weekly column in a daily newspaper with something that looks like public service. In fact, it is a disservice to common sense.
A revolving door ethics policy is designed to assure that there are no conflicts of interest arising from joint loyalties and cross-cutting commitments. Westbrook's tarry on the ethics board was barely long enough to warm a seat. There is no danger of conflict or compromise.
Fortunately for Westbrook, the state's Attorney General's Office has already weighed in on a virtually identical case involving another judicial candidate. According to the the Attorney General, notwithstanding a provision in the law requiring that a candidate who once served on a board with a revolving door policy wait for appointment, the law does not carry a sanction or remedy. Thus, lawmakers are free to appoint Westbrook or not to appoint her.
I've known Westbrook for a decade. She is honest. She is smart. She is a woman of good judgment and integrity. She is exactly the sort of person we should want on the bench. Hijacking her candidacy on the basis of a journalist's reading of the law would be a sad, sad mistake.
In the case of The Hartford Courant and Dawne Westbrook, the paper's sound and fury signifies nothing. There is no conflict, and if there was a technical violation of the law, lawmakers are free to assess it for what it really is: a sign that the ethics board really ought to take better care to orient members about what they are, and are not, free to do.
This sideshow has no doubt been deeply embarrassing to Westbrook. It ought not to derail her judicial candidacy. An afternoon's service is hardly grounds for disqualification. Now, let me go change the kitty litter box. I've got just the newspaper to line it with.
Westbrook should be confirmed to sit as a judge of the Superior Court of the State of Connecticut. Period.
The Hartford Courant called this into question this morning in a piece of journalism that looks, frankly, like muckraking for mere purpose of, well, raking muck.
Westbrook submitted her name as a candidate for a judge more than a year ago. She was vetted and approved for consideration. Then her name lingered, as do so many, in a netherworld. She needed political backing from someone to get her name before the governor. While she waited, she kept at the practice of law and engaged in public service.
In the fall of 2008, she was asked to serve on an entity known as the Citizen's Ethics Advisory Board, an unpaid position that polices the conduct of public officials. She turned up for her first meeting on September 25. She voted a couple of times to table matters, and she sat through an executive session of the group. Then a staff member on the board handed her state statutes governing the body. She noticed that it had a revolving door provision that prohibited employment by the state for one year after leaving the board.
After consultation with ethics gurus, she submitted a letter removing herself from the board a couple days after her first and only meeting. Her career on the committee lasted for about one meeting. She did not vote on any matters of substance.
A columnist at The Courant is now raising questions. Is this an illegal appointment? Why didn't Westbrook tell lawmakers she served for an afternoon on the ethics board? The suggestion is that either she or the governor's office has been careless in putting her name too soon before lawmakers as a potential judge.
This is sound and fury signifying little more than the need to fill a weekly column in a daily newspaper with something that looks like public service. In fact, it is a disservice to common sense.
A revolving door ethics policy is designed to assure that there are no conflicts of interest arising from joint loyalties and cross-cutting commitments. Westbrook's tarry on the ethics board was barely long enough to warm a seat. There is no danger of conflict or compromise.
Fortunately for Westbrook, the state's Attorney General's Office has already weighed in on a virtually identical case involving another judicial candidate. According to the the Attorney General, notwithstanding a provision in the law requiring that a candidate who once served on a board with a revolving door policy wait for appointment, the law does not carry a sanction or remedy. Thus, lawmakers are free to appoint Westbrook or not to appoint her.
I've known Westbrook for a decade. She is honest. She is smart. She is a woman of good judgment and integrity. She is exactly the sort of person we should want on the bench. Hijacking her candidacy on the basis of a journalist's reading of the law would be a sad, sad mistake.
In the case of The Hartford Courant and Dawne Westbrook, the paper's sound and fury signifies nothing. There is no conflict, and if there was a technical violation of the law, lawmakers are free to assess it for what it really is: a sign that the ethics board really ought to take better care to orient members about what they are, and are not, free to do.
This sideshow has no doubt been deeply embarrassing to Westbrook. It ought not to derail her judicial candidacy. An afternoon's service is hardly grounds for disqualification. Now, let me go change the kitty litter box. I've got just the newspaper to line it with.
Obama Disappoints On Bagram Habeas Petition
It did not take long for realpolitik to swallow the optimism of President Obama. Faced with a suit by prisoners held indefinitely by the United States at Bagram Air Force base in Afghanistan, the administration has thumbed its nose.
The prisoners are being held indefinitely by the United States. The Government contends the detainees are enemy combatants. The prisoners say they are not. They want their day in court to challenge the designation. So they filed a habeas corpus proceeding in Washington, D.C. to challenge the detention. The District Court judge considering the claim, John D. Bates, asked for the administration's position. What he got was a terse two-sentence filing asserting that because the prisoners are noncitizens held outside the of the United States, the court has no jurisdiction to hear the claim.
This crabbed conception of justice is a disgrace and the means exist to challenge it. International law is a part of the laws of the United States and federal courts are bound both to ascertain what it is and to administer it. As the Supreme Court noted in The Paquete Habana, 175 U.S. 677, 700 (1900): "International law is part of our law, and must be ascertained and administered by the courts..." Federal courts have previously recognized the right to be free arbitrary imprisonment. Fernandez v. Wilkinson, 505 F. Supp. 787 (D.Kansas 1980).
Customary international law is clear, as expressed in both the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights: indeterminate detention of a human being, whether citizen or not, absent some determination of risk to security violates human rights. The prisoners at Bagram seek to challenge their designation as enemy combatants. A decent respect for the law of nations requires that they be given the opportunity to raise such a tribunal in an American court. They are being held against their will by American troops at a facility operated and controlled by American forces.
Barack Obama ran on a platform promising hope, transparency and a something other than the politics of fear and hatred. Hiding behind an anachronistic conception of sovereignty in a glib two sentence "brief" is a deep disappointment. I hope the Bagram prisoners raise a claim under international law in the federal courts. Regardless of whether the detainees have rights as American citizens, they have rights as human beings that we are callous and foolhardy to ignore.
The prisoners are being held indefinitely by the United States. The Government contends the detainees are enemy combatants. The prisoners say they are not. They want their day in court to challenge the designation. So they filed a habeas corpus proceeding in Washington, D.C. to challenge the detention. The District Court judge considering the claim, John D. Bates, asked for the administration's position. What he got was a terse two-sentence filing asserting that because the prisoners are noncitizens held outside the of the United States, the court has no jurisdiction to hear the claim.
This crabbed conception of justice is a disgrace and the means exist to challenge it. International law is a part of the laws of the United States and federal courts are bound both to ascertain what it is and to administer it. As the Supreme Court noted in The Paquete Habana, 175 U.S. 677, 700 (1900): "International law is part of our law, and must be ascertained and administered by the courts..." Federal courts have previously recognized the right to be free arbitrary imprisonment. Fernandez v. Wilkinson, 505 F. Supp. 787 (D.Kansas 1980).
Customary international law is clear, as expressed in both the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights: indeterminate detention of a human being, whether citizen or not, absent some determination of risk to security violates human rights. The prisoners at Bagram seek to challenge their designation as enemy combatants. A decent respect for the law of nations requires that they be given the opportunity to raise such a tribunal in an American court. They are being held against their will by American troops at a facility operated and controlled by American forces.
Barack Obama ran on a platform promising hope, transparency and a something other than the politics of fear and hatred. Hiding behind an anachronistic conception of sovereignty in a glib two sentence "brief" is a deep disappointment. I hope the Bagram prisoners raise a claim under international law in the federal courts. Regardless of whether the detainees have rights as American citizens, they have rights as human beings that we are callous and foolhardy to ignore.
The Parable Project: The Friend At Midnight
The parable of the friend at midnight is reported in the Gospel of Luke at 11:5-8. It reads as follows:
"Then he [Jesus] said to them, "Suppose one of you has a friend, and he goes to him at midnight and says, 'Friend, lend me three loaves of bread, because a friend of mine on a journey has come to me, and I have nothing to set before him.'
"Then the one inside answers, 'Don't bother me. The door is already locked, and my children are with me in bed. I can't get up and give you anything.' I tell you, though he will not get up and give him the bread because he is his friend, yet because of the man's boldness he will get up and give him as much as he needs."
This parable, too, seems steeped in a sense of immanence or urgency. Yet it is not wakefulness that is counseled here. There is no servant awaiting the master's return well past midnight. Instead, a man goes to sleep; his family is in bed. There is a knock at the door and a simple request. "Go away," the awoken man says. But his friend is persistent. The sleeper awakes and gives aid. The focus here is on those already awake. Persistence, boldness, is required to get folks to hear.
It makes sense, but, for the life of me , I am not persuaded there is anything really to hear.
Once again, a person in the dead of night needs must remain alert, attentive, wakeful. The good friend does not let him slumber. The polite response, the conventional response, would be to let the man sleep and not to disturb his children, snuggled abed with him. But convention is defied.
"Then he [Jesus] said to them, "Suppose one of you has a friend, and he goes to him at midnight and says, 'Friend, lend me three loaves of bread, because a friend of mine on a journey has come to me, and I have nothing to set before him.'
"Then the one inside answers, 'Don't bother me. The door is already locked, and my children are with me in bed. I can't get up and give you anything.' I tell you, though he will not get up and give him the bread because he is his friend, yet because of the man's boldness he will get up and give him as much as he needs."
This parable, too, seems steeped in a sense of immanence or urgency. Yet it is not wakefulness that is counseled here. There is no servant awaiting the master's return well past midnight. Instead, a man goes to sleep; his family is in bed. There is a knock at the door and a simple request. "Go away," the awoken man says. But his friend is persistent. The sleeper awakes and gives aid. The focus here is on those already awake. Persistence, boldness, is required to get folks to hear.
It makes sense, but, for the life of me , I am not persuaded there is anything really to hear.
Once again, a person in the dead of night needs must remain alert, attentive, wakeful. The good friend does not let him slumber. The polite response, the conventional response, would be to let the man sleep and not to disturb his children, snuggled abed with him. But convention is defied.
Friday, February 20, 2009
Dr. Lee? Absent From NAS Study On Science And The Courts
Guess whose name is conspicuously absent from the new National Academy of Sciences' report on the forensic use of science? The inscrutable Dr. Henry C. Lee. Indeed, even the institution he founded, housed at the University of New Haven, is absent from the list of those consulted, relied upon, or heard from in Strengthening Forensic Science in the United States: A Path Forward.
This significance of this cannot be overstated in my view. Dr. Lee is the prime time face of the use of science in forensic settings, known to some as "forensic science." He has opinions, publications and disciples in almost every application of science in the courts. He has made a fortune testifying and opining and serving as a hired gun for anyone with a buck. Call him P.T. Barnum in a lab coat.
The first thing I did after downloading a copy of the NSF report was scan the names of those who contributed. It was a morbid sort of curiosity. I wanted to see if I had met any of the contributors in court, or whether I had read any of their studies. I was relieved not to see Lee's name in the mix. Its absence made the study seem more credible.
Good riddance, Dr. Lee. For profit science for jurors is almost as dangerous as being the bought and paid for stooge for a government crime lab. It will be interesting to see what spin Lee concocts for his failure to be invited to the NAS party. He'll have something to say; indeed, he'll probably write another book -- this time on the NAS.
This significance of this cannot be overstated in my view. Dr. Lee is the prime time face of the use of science in forensic settings, known to some as "forensic science." He has opinions, publications and disciples in almost every application of science in the courts. He has made a fortune testifying and opining and serving as a hired gun for anyone with a buck. Call him P.T. Barnum in a lab coat.
The first thing I did after downloading a copy of the NSF report was scan the names of those who contributed. It was a morbid sort of curiosity. I wanted to see if I had met any of the contributors in court, or whether I had read any of their studies. I was relieved not to see Lee's name in the mix. Its absence made the study seem more credible.
Good riddance, Dr. Lee. For profit science for jurors is almost as dangerous as being the bought and paid for stooge for a government crime lab. It will be interesting to see what spin Lee concocts for his failure to be invited to the NAS party. He'll have something to say; indeed, he'll probably write another book -- this time on the NAS.
Forensic Science: A Challenge To The Adversarial System?
Truth, we say, wins out at trial. Well-prepared adversaries in the well of a court each pressing as hard as they can for their client will yield shimmering gems, compacting coal into diamonds, glittering truths that will decide facts. Such is the theory anyway.
The National Academy of Sciences' recent report on forensic sciences poses a challenge to the adversarial system. Is the legal community up to the task of testing truths generated by science?
We all know that courtrooms are not laboratories. But when a scientist takes the stand to testify, when he enters the fora and by dint of taking an oath turns his science to forensic use, do lawyers and judges advance the search for truth, or do we get in the way?
I've just begun to plow through the report, Strengthening Forensic Science in the United States: A Path Forward. It is written in simple and accessible prose and is the product of research and interview by a panel assembled at the request of Congress to determine how our courts can better handle scientific evidence.
One proposal is shocking in its elegance. The panel calls for creation of an independent National Institute of Forensic Science. Among its many tasks would be the establishment and enforcement of standards for the collection and interpretation of forensic evidence. "Scientific and medical assessment conducted in forensic investigations should be independent of law enforcement efforts either to prosecute criminal suspects or even to determine whether a criminal act has indeed been committed. Administratively, this means that forensic scientists should function independently of law enforcement administrators," the report states.
This is heady stuff. Imagine a forensic laboratory housed, let's say, in a state's Department of Public Health, and administered by scientists accredited in forensic work. No person not so accredited would be permitted to give scientific testimony in a court. We'd need to rework Daubert to realize that general acceptance of a method does not entitle an apprentice without scientific training to opine. The present state of things permits a police officer to testify about a machine's test results without the ability to comment on why or how the machine does its work. This so-called black box testimony is routinely permitted by the courts and it comes down to the following tautology: It is reliable because we rely on it. This stuff isn't self authenticating.
The current state of forensic use of science -- can't we ban the term "forensic science" once and for all as meaningless -- is dismal. Law enforcement crime labs interpret data and opine on behalf of the state or Government. There are not Public Defender labs. And private labs are either too expensive or too poorly equipped to provide much assistance to many defendents. The NAS study acknowledges the observer bias plays a role in the current use of scientific testimony by law enforcement. What you see often depends on where you sit. If you are sitting in the FBI crime lab, small wonder the defendant looks guilty.
The report goes on to acknowledge an obvious truth" "lawyers and judges often have insufficient training and background in scientific methodology, and they often fail to fully comprehend the approaches employed by different forensic science disciplines and the reliability of forensic science evidence offered in trial." I've often been int trial and seen prosecutors put experts on the stand without apparent comprehension of the science the expert opines on. It is easy to cross examine these experts if you do your homework and read their texts: the state won't, and hence rehabilitation of the experts fails when a bleary-eyed prosecutor stands deer-like staring into the headlights.
The courts are awash in the forensic use of science. Often the experts are employees of law enforcement agencies offered as witnesses by prosecutors. The science is often of questionable vintage. They appear in court before jurors dazzled by mere mention of the term "forensic." They testify as defense counsel chips away with what remains of a high schooler's understanding of chemistry or physics. Juries sit back, puzzled, dazzled and confused by a vocabulary not even the judge really understands. How many people are convicted by jurors who say, in effect, I'm not sure what all that meant, but it sure sounded good?
The NAS report is a sub rosa challenge to the adversarial system of justice. Perhaps the truth does not emerge in every case. Perhaps there are cases in which the lawyers, who are supposed to be galdiators well equipped to slay cant, misperception and error, don't know enough to ask the right questions. Perhaps truth is sacrificed by judges who throw up their hands and say if it is good enough for others it is good enough for me, without ever really asking if the others know what they are talking about?
I favor the adversarial system of justice because it highlights my principal skill as a lawyer: cross examination. But I wonder this morning as I begin to digest the significance of the NAS study, whether an inquistorial system might not better serve. Science does not thrive in a world built on conflict; the search for truth is collaborative and the bound by a common method and norms. Are these methods and norms in perpetual conflict with the ethos of a courtroom?
The National Academy of Sciences' recent report on forensic sciences poses a challenge to the adversarial system. Is the legal community up to the task of testing truths generated by science?
We all know that courtrooms are not laboratories. But when a scientist takes the stand to testify, when he enters the fora and by dint of taking an oath turns his science to forensic use, do lawyers and judges advance the search for truth, or do we get in the way?
I've just begun to plow through the report, Strengthening Forensic Science in the United States: A Path Forward. It is written in simple and accessible prose and is the product of research and interview by a panel assembled at the request of Congress to determine how our courts can better handle scientific evidence.
One proposal is shocking in its elegance. The panel calls for creation of an independent National Institute of Forensic Science. Among its many tasks would be the establishment and enforcement of standards for the collection and interpretation of forensic evidence. "Scientific and medical assessment conducted in forensic investigations should be independent of law enforcement efforts either to prosecute criminal suspects or even to determine whether a criminal act has indeed been committed. Administratively, this means that forensic scientists should function independently of law enforcement administrators," the report states.
This is heady stuff. Imagine a forensic laboratory housed, let's say, in a state's Department of Public Health, and administered by scientists accredited in forensic work. No person not so accredited would be permitted to give scientific testimony in a court. We'd need to rework Daubert to realize that general acceptance of a method does not entitle an apprentice without scientific training to opine. The present state of things permits a police officer to testify about a machine's test results without the ability to comment on why or how the machine does its work. This so-called black box testimony is routinely permitted by the courts and it comes down to the following tautology: It is reliable because we rely on it. This stuff isn't self authenticating.
The current state of forensic use of science -- can't we ban the term "forensic science" once and for all as meaningless -- is dismal. Law enforcement crime labs interpret data and opine on behalf of the state or Government. There are not Public Defender labs. And private labs are either too expensive or too poorly equipped to provide much assistance to many defendents. The NAS study acknowledges the observer bias plays a role in the current use of scientific testimony by law enforcement. What you see often depends on where you sit. If you are sitting in the FBI crime lab, small wonder the defendant looks guilty.
The report goes on to acknowledge an obvious truth" "lawyers and judges often have insufficient training and background in scientific methodology, and they often fail to fully comprehend the approaches employed by different forensic science disciplines and the reliability of forensic science evidence offered in trial." I've often been int trial and seen prosecutors put experts on the stand without apparent comprehension of the science the expert opines on. It is easy to cross examine these experts if you do your homework and read their texts: the state won't, and hence rehabilitation of the experts fails when a bleary-eyed prosecutor stands deer-like staring into the headlights.
The courts are awash in the forensic use of science. Often the experts are employees of law enforcement agencies offered as witnesses by prosecutors. The science is often of questionable vintage. They appear in court before jurors dazzled by mere mention of the term "forensic." They testify as defense counsel chips away with what remains of a high schooler's understanding of chemistry or physics. Juries sit back, puzzled, dazzled and confused by a vocabulary not even the judge really understands. How many people are convicted by jurors who say, in effect, I'm not sure what all that meant, but it sure sounded good?
The NAS report is a sub rosa challenge to the adversarial system of justice. Perhaps the truth does not emerge in every case. Perhaps there are cases in which the lawyers, who are supposed to be galdiators well equipped to slay cant, misperception and error, don't know enough to ask the right questions. Perhaps truth is sacrificed by judges who throw up their hands and say if it is good enough for others it is good enough for me, without ever really asking if the others know what they are talking about?
I favor the adversarial system of justice because it highlights my principal skill as a lawyer: cross examination. But I wonder this morning as I begin to digest the significance of the NAS study, whether an inquistorial system might not better serve. Science does not thrive in a world built on conflict; the search for truth is collaborative and the bound by a common method and norms. Are these methods and norms in perpetual conflict with the ethos of a courtroom?
Thursday, February 19, 2009
Forensic Science?
I just downloaded a copy of the 254 page report by the National Academy of Sciences on the state of forensic sciences in the United States. Entitled, Strengthening Forensic Science in the United States: A Path Forward, the report is must reading for criminal defense lawyers. Press accounts and blog chatter are ringing now with claims that forensic sciences are "BS." I will reserve judgment until I actually read this report.
Two points seem worth making at the outset.
First, there really is no such thing as forensic science. There are core sciences and applied sciences. These techniques and methods of investigating things yield results that are more or less reliable. Calling something forensic merely means it has been prepared in anticipation of a court proceeding.
Last week, I had a forensic toxicologist on the stand. On direct, he could not throw the word forensic around often enough. On cross-examination I asked him whether he agreed with me that calling a science forensic added no scientific value. He said he would have to think about it. Later he agreed. All it means to call something forensic is to say it was prepared for preparation in the "fora," or court. There is no scientic method known as forensic. The public is seduced by the fancy sound of the word.
Finally, this report seems to suggest that courts are also often hoodwinked. I recall a case of mine years ago involving bitemark evidence. The state's forensic odontologist relied on digitally enhanced photographs of the victim's breast in claiming that my client had bitten her. When I challenged the expert to tell the court how a digitally enhanced process had accounted for the three dimensional curve in the two-dimensional image of the victim's breast, the expert could not. The court permitted the testimony, saying it went to its weight, not to its admissibility. When the Supreme Court later ruled that it was error to admit this testimony, it was too late: The Court found the error harmless. I wonder about that to this very day.
Judges fail when they let questionable evidence in and avoid responsibility because a jury must assess the weight of the evidence. Most jurors, and most lawyers, don't know enough science to question an expert's pronouncement. The new NAP study suggests we all need to do our homework and fight a whole lot harder to keep junk science out of the courts.
Two points seem worth making at the outset.
First, there really is no such thing as forensic science. There are core sciences and applied sciences. These techniques and methods of investigating things yield results that are more or less reliable. Calling something forensic merely means it has been prepared in anticipation of a court proceeding.
Last week, I had a forensic toxicologist on the stand. On direct, he could not throw the word forensic around often enough. On cross-examination I asked him whether he agreed with me that calling a science forensic added no scientific value. He said he would have to think about it. Later he agreed. All it means to call something forensic is to say it was prepared for preparation in the "fora," or court. There is no scientic method known as forensic. The public is seduced by the fancy sound of the word.
Finally, this report seems to suggest that courts are also often hoodwinked. I recall a case of mine years ago involving bitemark evidence. The state's forensic odontologist relied on digitally enhanced photographs of the victim's breast in claiming that my client had bitten her. When I challenged the expert to tell the court how a digitally enhanced process had accounted for the three dimensional curve in the two-dimensional image of the victim's breast, the expert could not. The court permitted the testimony, saying it went to its weight, not to its admissibility. When the Supreme Court later ruled that it was error to admit this testimony, it was too late: The Court found the error harmless. I wonder about that to this very day.
Judges fail when they let questionable evidence in and avoid responsibility because a jury must assess the weight of the evidence. Most jurors, and most lawyers, don't know enough science to question an expert's pronouncement. The new NAP study suggests we all need to do our homework and fight a whole lot harder to keep junk science out of the courts.
Skull and Bones: Let's Open the Doors
Our youngest son went to Yale, graduating with a slew of honors a year ago. Of course we are proud of him, but, when the lights are out, and the animals are all down for the night, we would sometimes wonder about him.
"Do you think he is?" my wife would wonder.
"I don’t know. I wonder, too." I would reply.
"Why don’t we just ask him?" She would say, hopefully.
"Because if he told us he would have to kill us." I was matter of fact.
Isn’t that the ethic of secret societies? Swear a blood oath to silliness and keep silent to the grave. For the life of me, I cannot understand the allure of secret societies. And now the most exclusive little club of all, Yale’s Skull and Bones, has been sued in a federal court. At issue is whether club members robbed Geronimo’s grave, bringing back to New Haven the Apache warriors skull and femur, together with a horses bit and a saddle horn.
A recent editor of the Yale Alumni Magazine described the society as a "fortress separate from the university." The magazine claims there is evidence that members of Skull and Bones at least robbed a grave they thought was Geronimo’s.
The secret order of self-appointed nabobs is housed in a mausoleum-like structure near Yale’s campus and just blocks from the New Haven Superior Court. The building sits there, year after year, looking squat, and smug, and self-satisfied. Were I a burglar I’d target the place just for sport.
A letter written in 1918 and recently unearthed in a Yale archive strongly suggests that Geronimo’s remains are in New Haven. Some think that Prescott Bush, the forebear of Bush I and Bush II, was one of the thieves.
One of Geronimo’s great grandchildren hired William Ramsey Clark to bring the action for recovery of the remains. Suit has been filed under the Native American Graves Protection and Reparations Act. The suit names, among others, Barack Obama, Defense Secretary Robert Gates, Army Secretary Peter Geren, Yale University and the Order of Skull and Bones.
I am a reasonably creative and known from time to time to stretch the known boundaries of the law, but President Obama? Isn’t he a Harvard and Columbia man? It is difficult to conceive of a role for him in the suit, as it for the Secretaries of Defense and Army. But the Order of Skull and Bones? Have at them, I say.
Fouling a grave is regarded as desecration by Native Americans, and, frankly, by just about anyone else with a pulse. We may arise from dust and return to dust, but the memory of those long gone is the closest we come to immortality. Perhaps these inchoate and shared memories of the dead are the source of the unseen hope for an afterlife.
Yale, of course, denies comment on the suit. In the university’s case, that is more than sound management of litigation. The university, like the Order of Skull and Bones, regards itself as somehow apart the nation as a whole. Try subpoenaing a university official sometime. The university responds as though it is an insult. "Why we’re older than the United States. What is this piffle?" it’s lawyers all but snort.
I say permit discovery in the case, at least as to the Order of Skull and Bones. Permit an inspection of its playpen in New Haven. Let an archivist read its secret rolls. And when members howl in court for a protective order, deny it. There is now an action pending in federal court. No good cause justifies keeping a supper club’s list sealed, secret and stowed away in a dusty vault. Especially if the blue blood of its members is stained with the taint of grave robbing.
I am willing to bet my son is not a member. I like to think he has more sense than that. Perhaps this litigation will settle the matter once and for all.
Reprinted courtesy of The Connecticut Law Tribune.
UPDATE: Here is a link to the letter, courtesy of an email I just got from an interested reader. She also reported that the president and others are sued as the action seeks return of all of Geronimo's remains, wherever they are kept. http://yalealumnimagazine.com/issues/2006_05/images/Yale_Alumn_Magazine.pdf
"Do you think he is?" my wife would wonder.
"I don’t know. I wonder, too." I would reply.
"Why don’t we just ask him?" She would say, hopefully.
"Because if he told us he would have to kill us." I was matter of fact.
Isn’t that the ethic of secret societies? Swear a blood oath to silliness and keep silent to the grave. For the life of me, I cannot understand the allure of secret societies. And now the most exclusive little club of all, Yale’s Skull and Bones, has been sued in a federal court. At issue is whether club members robbed Geronimo’s grave, bringing back to New Haven the Apache warriors skull and femur, together with a horses bit and a saddle horn.
A recent editor of the Yale Alumni Magazine described the society as a "fortress separate from the university." The magazine claims there is evidence that members of Skull and Bones at least robbed a grave they thought was Geronimo’s.
The secret order of self-appointed nabobs is housed in a mausoleum-like structure near Yale’s campus and just blocks from the New Haven Superior Court. The building sits there, year after year, looking squat, and smug, and self-satisfied. Were I a burglar I’d target the place just for sport.
A letter written in 1918 and recently unearthed in a Yale archive strongly suggests that Geronimo’s remains are in New Haven. Some think that Prescott Bush, the forebear of Bush I and Bush II, was one of the thieves.
One of Geronimo’s great grandchildren hired William Ramsey Clark to bring the action for recovery of the remains. Suit has been filed under the Native American Graves Protection and Reparations Act. The suit names, among others, Barack Obama, Defense Secretary Robert Gates, Army Secretary Peter Geren, Yale University and the Order of Skull and Bones.
I am a reasonably creative and known from time to time to stretch the known boundaries of the law, but President Obama? Isn’t he a Harvard and Columbia man? It is difficult to conceive of a role for him in the suit, as it for the Secretaries of Defense and Army. But the Order of Skull and Bones? Have at them, I say.
Fouling a grave is regarded as desecration by Native Americans, and, frankly, by just about anyone else with a pulse. We may arise from dust and return to dust, but the memory of those long gone is the closest we come to immortality. Perhaps these inchoate and shared memories of the dead are the source of the unseen hope for an afterlife.
Yale, of course, denies comment on the suit. In the university’s case, that is more than sound management of litigation. The university, like the Order of Skull and Bones, regards itself as somehow apart the nation as a whole. Try subpoenaing a university official sometime. The university responds as though it is an insult. "Why we’re older than the United States. What is this piffle?" it’s lawyers all but snort.
I say permit discovery in the case, at least as to the Order of Skull and Bones. Permit an inspection of its playpen in New Haven. Let an archivist read its secret rolls. And when members howl in court for a protective order, deny it. There is now an action pending in federal court. No good cause justifies keeping a supper club’s list sealed, secret and stowed away in a dusty vault. Especially if the blue blood of its members is stained with the taint of grave robbing.
I am willing to bet my son is not a member. I like to think he has more sense than that. Perhaps this litigation will settle the matter once and for all.
Reprinted courtesy of The Connecticut Law Tribune.
UPDATE: Here is a link to the letter, courtesy of an email I just got from an interested reader. She also reported that the president and others are sued as the action seeks return of all of Geronimo's remains, wherever they are kept. http://yalealumnimagazine.com/issues/2006_05/images/Yale_Alumn_Magazine.pdf
Wednesday, February 18, 2009
Beware The Prospective Fallacy
Trial lawyers are story tellers. To cynics, that means lawyers make up stories that serve the interest of their clients. Popular fiction is filled with lawyers who lie, cheat and steal to get ahead. On this view, trial lawyers are no better than, let's say, bankers or coal executives. Truth is merely an option.
Legal ethics, of course, requires more. We are forbidden, for example, from knowingly presenting false testimony in a court proceeding. Our duty of candor toward the tribunal extends so far as to require us even to alert the court to cases that cut against our client's interest.
But discovering the truth is far from simple. Trials are recreations of events most often long since past. We work with rules of evidence to recreate the past. Sometimes knowing how events turned out in the end colors our perception of preceding events. Knowing the end of the story yields interpretive bias. Historians, too, struggle against this source of bias, but in their case the danger of distortion is far more profound. Recreating events that occurred centuries ago is often more difficult that recreating last year's burglary.
The prospective fallacy is a lens that colors prior events with knowledge of how an course of events turned out.
I was reminded of this in Paula Fredriksen's Jesus of Nazareth: King of the Jews (Vintage Books: New York, 1999). She writes: "[T]he person in search of the past must affect an innocence of the future. Our knowledge of how events ulitmately worked out too easily gives us a false perpective on how they came to be." Thus, in terms of research on the historical Jesus, looking back after centuries of religious practice steeped in theological armament about Jesus as Son of God, member of the trinity, even Messiah, can make interpretation of the scant historical record about his life impossibly complex.
Fredricksen's notion of affecting innocence of the future is intriguing. Obviously, an interpretation of an event is colored by the outcome requiring interpretation. Thus a person's mere presence at a homicide scene looks suspicious. And statements of malevolence about another take on a sinister case when the person about whom the statements are made is a victim of violence. The danger with circumstantial evidence is that is results in a permissive inference; it is grist for the story teller's mill. Dots can be connected under the pressure of narrative drive that were merely random events before an act acquires significance.
Put another way, I sometimes wonder where a person's bad luck too often becomes a prosecutor's, or, for that matter, a plaintiff's serendipity. How often do we worship at altars made of fantasy?
Co
Legal ethics, of course, requires more. We are forbidden, for example, from knowingly presenting false testimony in a court proceeding. Our duty of candor toward the tribunal extends so far as to require us even to alert the court to cases that cut against our client's interest.
But discovering the truth is far from simple. Trials are recreations of events most often long since past. We work with rules of evidence to recreate the past. Sometimes knowing how events turned out in the end colors our perception of preceding events. Knowing the end of the story yields interpretive bias. Historians, too, struggle against this source of bias, but in their case the danger of distortion is far more profound. Recreating events that occurred centuries ago is often more difficult that recreating last year's burglary.
The prospective fallacy is a lens that colors prior events with knowledge of how an course of events turned out.
I was reminded of this in Paula Fredriksen's Jesus of Nazareth: King of the Jews (Vintage Books: New York, 1999). She writes: "[T]he person in search of the past must affect an innocence of the future. Our knowledge of how events ulitmately worked out too easily gives us a false perpective on how they came to be." Thus, in terms of research on the historical Jesus, looking back after centuries of religious practice steeped in theological armament about Jesus as Son of God, member of the trinity, even Messiah, can make interpretation of the scant historical record about his life impossibly complex.
Fredricksen's notion of affecting innocence of the future is intriguing. Obviously, an interpretation of an event is colored by the outcome requiring interpretation. Thus a person's mere presence at a homicide scene looks suspicious. And statements of malevolence about another take on a sinister case when the person about whom the statements are made is a victim of violence. The danger with circumstantial evidence is that is results in a permissive inference; it is grist for the story teller's mill. Dots can be connected under the pressure of narrative drive that were merely random events before an act acquires significance.
Put another way, I sometimes wonder where a person's bad luck too often becomes a prosecutor's, or, for that matter, a plaintiff's serendipity. How often do we worship at altars made of fantasy?
Co
Monday, February 16, 2009
The Parable Project: The Doorkeeper
The parable of the doorkeeper is found in Mark's Gospel, chapter 13:34-36.
"[For the Son of man is] as a man taking a far journey, who left his house, and gave authority to his servants, and to every man his work, and commanded the porter to watch.
" Watch ye therefore: for ye know not when the master of the house cometh, at even, or at midnight, or at the cockcrowing, or in the morning:
" Lest coming suddenly he find you sleeping."
Scholars regard Mark's gospel as the earliest. This parable, which is reworked slightly in Luke's gospel in chapter 12:35-38, is easy to render in existential terms. Wakefulness, the need to ever present in every moment as a sign of something like authenticity is the rendering that springs most quickly to mind. But this reading almost seems trite.
Of course, early Christians expected Jesus to return. Recall Paul's hopes in his letters for an immediate return. Is this simply an exhortation to be remain alert lest one is caught unawares? This seems to literal to satisfy. The second coming has been an awfully long time in coming.
I prefer a reading that stresses wakefulness, and the rejection of complacency. A spirit alive senses change in every wind. Although I can say I have any comprehension of the divine, I am aware that at root we are such things as dreams are made of. We can render the world in safe terms, and live within the confines of concepts to which lend a false sense of reality. Or we can accept the fact that ever the readiest anchor is incapable of tethering us to a reality so stable as to eliminate the need for faith and hope in what is beyond our ken.
Is it possible that the Kingdom of God, immanent yet forever removed, is really nothing more than humility in the face of what cannot be known, a humility that requires not just faith and hope, but charity as well? Recall that the greatest gift is love; perhaps it is also the most necessary gift of all.
"[For the Son of man is] as a man taking a far journey, who left his house, and gave authority to his servants, and to every man his work, and commanded the porter to watch.
" Watch ye therefore: for ye know not when the master of the house cometh, at even, or at midnight, or at the cockcrowing, or in the morning:
" Lest coming suddenly he find you sleeping."
Scholars regard Mark's gospel as the earliest. This parable, which is reworked slightly in Luke's gospel in chapter 12:35-38, is easy to render in existential terms. Wakefulness, the need to ever present in every moment as a sign of something like authenticity is the rendering that springs most quickly to mind. But this reading almost seems trite.
Of course, early Christians expected Jesus to return. Recall Paul's hopes in his letters for an immediate return. Is this simply an exhortation to be remain alert lest one is caught unawares? This seems to literal to satisfy. The second coming has been an awfully long time in coming.
I prefer a reading that stresses wakefulness, and the rejection of complacency. A spirit alive senses change in every wind. Although I can say I have any comprehension of the divine, I am aware that at root we are such things as dreams are made of. We can render the world in safe terms, and live within the confines of concepts to which lend a false sense of reality. Or we can accept the fact that ever the readiest anchor is incapable of tethering us to a reality so stable as to eliminate the need for faith and hope in what is beyond our ken.
Is it possible that the Kingdom of God, immanent yet forever removed, is really nothing more than humility in the face of what cannot be known, a humility that requires not just faith and hope, but charity as well? Recall that the greatest gift is love; perhaps it is also the most necessary gift of all.
Big Brother As Cookie Monster?
I'm generally well behind the curve on most issues. Were these truly medieval times, my shield would bear the image of Hegel's Owl of Minerva, which, famously, settles only at dusk. But a friend passed along the following interview with Cindy Cohn, legal director of the Electronic Frontier Foundation. It turns out the Obama administration is hording cookies. Visit a government website on YouTube and you'll leave a record. Query? What does an administration devoted to transparency and openness in Government need with all this information. According to Cohn, even the Bush administration showed more sensitivity.
Check out part one of the interview at the following link. Houndcat's interviewing Cohn at the Daily Kos. http://www.dailykos.com/story/2009/2/15/211912/550?new=true
Check out part one of the interview at the following link. Houndcat's interviewing Cohn at the Daily Kos. http://www.dailykos.com/story/2009/2/15/211912/550?new=true
Sunday, February 15, 2009
Buying Justice in West Virginia
"When you've got to choose between a guy who released a pedophile and a coal executive, it's a tossup," the man said. He thinks he's being a wiseass. Of course, you'd choose the law-abiding coal executive. Wouldn't you?
The man in question is a tough-talking West Virginian named Don L. Blankenship. When ABC News tried to interview him about pictures showing him in Monte Carlo with a justice of the state's Supreme Court, Blankenship is reported to have said that someone was "liable to get shot" if the questioning persisted. It's the sort of two-dimensional chatter one would expect to see in a John Grisham novel. But it is real, all too real.
Blankesnhip spent about $3 million of his own money to unseat a justice of the State Supreme Court, Warren R. McGraw. Once the judge was unseated, and a new justice seated, the Court ruled 3-2 to throw out a $50 million verdict against Blankenship's company, Massey Energy. Blanksenhip regards this as mere serendipity. "Electing somebody hoping he's going to be in your favor doesn't make any sense at all," he asserts. If Blankenship is as big a fool as he pretends, I propose that he write me a check for $3 million. I mean, what the Hell; if you're going to piss it away without regard to the consequences, throw it my way.
Whether the new justice, Brent Benjamin, should have recused himself from the vote on Massey Energy is now before the United States Supreme Court. Caperton v. A.T. Massey Coal will be argued March 3.
Thirty-nine states resort to elections of some sort to select judges. This results in judges soliciting contributions from the very lawyers before whom they appear. There are sometimes bitter elections turning on the popularity of a judge's decision in a particular case.
In West Virginia, Don Blankenship decided he wanted a change on the court. So he anted up $3 million and sent his flunkies to work scouring Justice Warren McGraw's voting record. The stooges hit pay dirt. A youth who was abused as a child himself abused a half brother. The young man was fourteen when himself was transformed from victim to defendant. At the age of 18, he was released on probation. Judge McGraw joined in the Supreme Court's decision in this case.
Blankenship's whores dressed the decision up as a decision to release a pedophile into the schools. "Being the street fighter that I am," Blankenship boasts, he knew he had hit pay dirt. He'd found a way to stir passions. West Virginia's very own Willie Horton. "That killed him," Blankenship boasts with a smile. Justice McGraw was toast.
So let me get this straight: We don't want justices who care about the rights of the accused and the unpopular? We want a justice who knows what big business needs. But when we spend millions on an election we don't really care about the outcome. We're just good citizens. Perhaps that plays out behind an Appalachian shack where folks struggle to read the label on a whiskey bottle. Or in boardrooms where barons pray that money will buy justice. It looks like swill from where I sit.
Electing judges is a horrible idea. Passion, privilege and wealth are often blind to what justice requires. Blankenship illustrates that. He is a caricature. If states are free to determine how to select their judges, then Congress ought at least to give to the people the right to remove state claims to federal court. When justice is for sale in state courts, the people should be able to seek justice in a location far removed from the pig's trough.
The man in question is a tough-talking West Virginian named Don L. Blankenship. When ABC News tried to interview him about pictures showing him in Monte Carlo with a justice of the state's Supreme Court, Blankenship is reported to have said that someone was "liable to get shot" if the questioning persisted. It's the sort of two-dimensional chatter one would expect to see in a John Grisham novel. But it is real, all too real.
Blankesnhip spent about $3 million of his own money to unseat a justice of the State Supreme Court, Warren R. McGraw. Once the judge was unseated, and a new justice seated, the Court ruled 3-2 to throw out a $50 million verdict against Blankenship's company, Massey Energy. Blanksenhip regards this as mere serendipity. "Electing somebody hoping he's going to be in your favor doesn't make any sense at all," he asserts. If Blankenship is as big a fool as he pretends, I propose that he write me a check for $3 million. I mean, what the Hell; if you're going to piss it away without regard to the consequences, throw it my way.
Whether the new justice, Brent Benjamin, should have recused himself from the vote on Massey Energy is now before the United States Supreme Court. Caperton v. A.T. Massey Coal will be argued March 3.
Thirty-nine states resort to elections of some sort to select judges. This results in judges soliciting contributions from the very lawyers before whom they appear. There are sometimes bitter elections turning on the popularity of a judge's decision in a particular case.
In West Virginia, Don Blankenship decided he wanted a change on the court. So he anted up $3 million and sent his flunkies to work scouring Justice Warren McGraw's voting record. The stooges hit pay dirt. A youth who was abused as a child himself abused a half brother. The young man was fourteen when himself was transformed from victim to defendant. At the age of 18, he was released on probation. Judge McGraw joined in the Supreme Court's decision in this case.
Blankenship's whores dressed the decision up as a decision to release a pedophile into the schools. "Being the street fighter that I am," Blankenship boasts, he knew he had hit pay dirt. He'd found a way to stir passions. West Virginia's very own Willie Horton. "That killed him," Blankenship boasts with a smile. Justice McGraw was toast.
So let me get this straight: We don't want justices who care about the rights of the accused and the unpopular? We want a justice who knows what big business needs. But when we spend millions on an election we don't really care about the outcome. We're just good citizens. Perhaps that plays out behind an Appalachian shack where folks struggle to read the label on a whiskey bottle. Or in boardrooms where barons pray that money will buy justice. It looks like swill from where I sit.
Electing judges is a horrible idea. Passion, privilege and wealth are often blind to what justice requires. Blankenship illustrates that. He is a caricature. If states are free to determine how to select their judges, then Congress ought at least to give to the people the right to remove state claims to federal court. When justice is for sale in state courts, the people should be able to seek justice in a location far removed from the pig's trough.
A New Internet?
Much though I love freedom of speech, the more raucous and unrestrained the better, I also favor the creation of a new Internet. Even if it is a so-called "gated community" where folks must assume an identity to participate. The Internet now resembles a giant libidinal bubble, where anyone can howl, growl and shriek, all with plausible deniability. And identities can be stolen with the ease of snatching an unlocked bicycle.
Today's New York Times carries a story entitled "A New Internet?" It reports that while use of the Internet is now common, and a lifeline for businesses, government and folks everywhere, the system is far from secure. It can come crashing down at the hands of pranksters who can hide their tracks with apparent ease.
"Unless we're willing to rethink today's Internet," one engineer told the Times, "we're just waiting for a series of public catastrophes." Another expert drove the point home in a more memorable way: "If you're looking for a digital Pearl Harbor, we now have Japanese ships streaming toward us on the horizon."
Security issues are beyond my ken. On one level, it is not at all clear to me how a gated Internet would eliminate viral mischief. It would seem an easy thing to create a false identity for the purposes of mayhem. I certainly would not support Government regulation of access to a more secure Internet. Will there be a new Department of Motor Vehicles, or some such, called, perhaps, Department of Electronic Communications, together with photographic identification cards? Perhaps a digital read of a thumb print or retinal image to log on. That is chilling.
Apparently, a new more secure Internet is well beyond the planning stage. A new system has been developed and will be operable on eight college networks this summer. It would not suprise me to learn that there are limited access Internet universes accessible only to the military and Government. After all, the Internet came to life in such corridors of power.
But I still am intrigued of a gated Internet world. So much of the communication on line today comes in the form of outbursts by folks writing under a pseudonym. For the life of me, I cannot understand why someone thinks their opinions become more trustworthy, or even interesting, when expressed anonymously. No tyrant threatens to squash dissent by crushing the writer. If anything, the Internet is so wide open that every mental ejaculation, no matter how bizzare, is now a post somewhere. Discourse has become masturbation.
I'll sign on to a gated Internet. The extra security would be worth the minimal intrusion that comes of posting under a real name with a real address. But I will worry that once regulation begins, it will blossom into rules about what can and cannot be posted. The print media will love a gated Internet, the better to edit us. And Government will love it, too. And let's not forget the captains of commerce: users fees are income, after all. I suppose that is why the wild, wild West of Internet communication won't end any time soon.
Today's New York Times carries a story entitled "A New Internet?" It reports that while use of the Internet is now common, and a lifeline for businesses, government and folks everywhere, the system is far from secure. It can come crashing down at the hands of pranksters who can hide their tracks with apparent ease.
"Unless we're willing to rethink today's Internet," one engineer told the Times, "we're just waiting for a series of public catastrophes." Another expert drove the point home in a more memorable way: "If you're looking for a digital Pearl Harbor, we now have Japanese ships streaming toward us on the horizon."
Security issues are beyond my ken. On one level, it is not at all clear to me how a gated Internet would eliminate viral mischief. It would seem an easy thing to create a false identity for the purposes of mayhem. I certainly would not support Government regulation of access to a more secure Internet. Will there be a new Department of Motor Vehicles, or some such, called, perhaps, Department of Electronic Communications, together with photographic identification cards? Perhaps a digital read of a thumb print or retinal image to log on. That is chilling.
Apparently, a new more secure Internet is well beyond the planning stage. A new system has been developed and will be operable on eight college networks this summer. It would not suprise me to learn that there are limited access Internet universes accessible only to the military and Government. After all, the Internet came to life in such corridors of power.
But I still am intrigued of a gated Internet world. So much of the communication on line today comes in the form of outbursts by folks writing under a pseudonym. For the life of me, I cannot understand why someone thinks their opinions become more trustworthy, or even interesting, when expressed anonymously. No tyrant threatens to squash dissent by crushing the writer. If anything, the Internet is so wide open that every mental ejaculation, no matter how bizzare, is now a post somewhere. Discourse has become masturbation.
I'll sign on to a gated Internet. The extra security would be worth the minimal intrusion that comes of posting under a real name with a real address. But I will worry that once regulation begins, it will blossom into rules about what can and cannot be posted. The print media will love a gated Internet, the better to edit us. And Government will love it, too. And let's not forget the captains of commerce: users fees are income, after all. I suppose that is why the wild, wild West of Internet communication won't end any time soon.
Pietro Brnwa: Remember This Name
Our youngest son is an aspiring doctor, starting a M.D./Ph.D. program this summer. So my wife and I read medical fiction and books about young doctors. I suppose we are afraid we'll run out of things to talk about with him. When a young doctor confronts crime, I am in seventh heaven. My son and I can both talk about things we understand.
A recent review of Josh Bazell's Beat the Reaper, a debut thriller published by Little-Brown, caught both my wife's and my eye the other day. It arrived in the mail a week or so ago. I finished it last night. A one word review could suffice: Wow.
But such a review doesn't permit me to introduce a character that I suspect will become a mainstay in years to come: Dr. Pietro Brnwa, also known as Peter Brown, and, to some, known for reasons that will become to readers, no pun intended, as "Bearclaw."
This is joyous irreverence at its best. Dr. Brnwa is working in a busy Manhattan hospital, a recent medical school graduate learning the ropes after a career switch from a very different profession. He eases the reader through the vocabulary of hospital medicine. "`Stat'," he tells us, "is short, though not very, for statim. `Calling a code' is what you do when you want to pretend you don't know that someone's already dead."
Bazell is himself a recent medical school graduate doing his residency at the University of California, San Francisco. He writes with more ease than you would expect about the criminal justice system, although he is on somewhat shaky ground when he writes about Brady v. Maryland. The decision does not create general discovery rights for defendants in a criminal case. Rather, it merely imposes on the Government a duty to disclose exculpatory evidence. But perhaps I am too harsh on Bazell, for, as it turns out, the evidence to which he refers when nodding at Brady turns out to be exculpatory in a way that trial lawyers can only fantasize about.
But you don't read Bazell for his take on the law. You read him because his prose are taught and filled with the necessary menace that comes of walking along life's edge in the service of others.
"It's a weird curse," Brnwa observes, "when you think about it. We're built for thought, and civilization, more than any other creature we've found. And all we really want to be is killers."
I won't pass the book on to my tender-hearted wife. There are scenes in the book that make you wince, and one that I had to read twice for the horror simply to take shape. It is rare that I am surprised by a thriller. But I was shocked, and for that I am grateful, and anxious to see where Brnwa next surfaces.
It's a jungle out there, all right. Bazell's gift is to make you laugh, even as the tiger stalks and you reckon with moral certainty the dismal odds of survival.
A recent review of Josh Bazell's Beat the Reaper, a debut thriller published by Little-Brown, caught both my wife's and my eye the other day. It arrived in the mail a week or so ago. I finished it last night. A one word review could suffice: Wow.
But such a review doesn't permit me to introduce a character that I suspect will become a mainstay in years to come: Dr. Pietro Brnwa, also known as Peter Brown, and, to some, known for reasons that will become to readers, no pun intended, as "Bearclaw."
This is joyous irreverence at its best. Dr. Brnwa is working in a busy Manhattan hospital, a recent medical school graduate learning the ropes after a career switch from a very different profession. He eases the reader through the vocabulary of hospital medicine. "`Stat'," he tells us, "is short, though not very, for statim. `Calling a code' is what you do when you want to pretend you don't know that someone's already dead."
Bazell is himself a recent medical school graduate doing his residency at the University of California, San Francisco. He writes with more ease than you would expect about the criminal justice system, although he is on somewhat shaky ground when he writes about Brady v. Maryland. The decision does not create general discovery rights for defendants in a criminal case. Rather, it merely imposes on the Government a duty to disclose exculpatory evidence. But perhaps I am too harsh on Bazell, for, as it turns out, the evidence to which he refers when nodding at Brady turns out to be exculpatory in a way that trial lawyers can only fantasize about.
But you don't read Bazell for his take on the law. You read him because his prose are taught and filled with the necessary menace that comes of walking along life's edge in the service of others.
"It's a weird curse," Brnwa observes, "when you think about it. We're built for thought, and civilization, more than any other creature we've found. And all we really want to be is killers."
I won't pass the book on to my tender-hearted wife. There are scenes in the book that make you wince, and one that I had to read twice for the horror simply to take shape. It is rare that I am surprised by a thriller. But I was shocked, and for that I am grateful, and anxious to see where Brnwa next surfaces.
It's a jungle out there, all right. Bazell's gift is to make you laugh, even as the tiger stalks and you reckon with moral certainty the dismal odds of survival.
Friday, February 13, 2009
... And The Gods Smiled
My client was acquitted today of all counts relating to the state's claim that she drove while intoxicated. She was convicted of one count arising from the jury's conclusion that one child was not in a mandated booster seat for a child under 60 pounds in weight. It is a good day.
Here's more: http://www.connpost.com/ci_11698286?source=rv
Here's more: http://www.connpost.com/ci_11698286?source=rv
A Day Trip To Hell ...
Waiting for a verdict in a criminal case is the closest I expect to get to Hell. That is not because I hope to ascend to Heaven at death. I simply don't believe in an afterlife. So today I suffer for sins committed in the past. But whose sins?
My client is accused of manslaughter as to her own children. She was driving a car on July 4, 2007. Her car collided head on with the another vehicle. Two of her three children were killed; she and another child were horribly injured. The passengers in the other vehicle suffered less serious injuries.
Almost two hours after the crash, and after intravenous lines, transfusions, the insertion of a chest tube, and after my client's body had responded well and fully to trauma, the hospital sent her blood for testing. She was en route to surgery for a lacerated liver. The anesthesiologist needed to know what he was treating. Her blood serum tested for positive for the presence of alcohol. The hospital used a machine that is non-specific for ehtanol, what we drink when we sedate ourselves.
After her blood sample was destroyed, and weeks after the tests were taken, police got a subpoena for her blood tests results. A toxicologist used those results to calculate that her blood alcohol level was .12. That is well above the legal limit of .08. Hence, she was charged with manslaughter and a slew of other charges revolving around the claim that she was intoxicated when she drove. She was not charged with driving under the influence; the evidence was infirm for that purpose.
The case turns on a battle of experts. The blood serum test is an enzyme based test involving oxidation of an enzyme known as alcohol dehydrogenase, produced in the liver. The state says the test is reliable, while acknowledging that lacate and other compounds produced by a body in trauma could contribute to a false positive. Our expert, a medical examiner from New York City, says the numbers aren't reliable given the condition of the client at the time the blood was drawn. Both experts agree that the preferred method of testing for blood alcohol content is gas chromatography as it discriminates between ethanol alcohol and related compounds. The hospital possessed no such machine.
Today, the jury wants to hear a read back of these two experts' testimony. We will sit for hours listening. It will be a special form of Hell for me. I find the trial of a case fascinating. But watching another try a case is like watching ice melt on a cool day. I will now have to watch myself. I am sure to find fault with each nonfluency and pause.
But the hottest coals in this inferno come of not knowing what becomes of the woman seated to my right. She is a beautiful young mother much loved by her surviving daughter. That the state would seek to imprison my client, as it seeks to do in this case, is beyond my comprehension. The state's decision to bring this case on blood evidence of such questionable pedigree strikes me as itself close to a criminal act.
So today we sit, and I, a man of little faith, come as close as I ever do to prayer.
My client is accused of manslaughter as to her own children. She was driving a car on July 4, 2007. Her car collided head on with the another vehicle. Two of her three children were killed; she and another child were horribly injured. The passengers in the other vehicle suffered less serious injuries.
Almost two hours after the crash, and after intravenous lines, transfusions, the insertion of a chest tube, and after my client's body had responded well and fully to trauma, the hospital sent her blood for testing. She was en route to surgery for a lacerated liver. The anesthesiologist needed to know what he was treating. Her blood serum tested for positive for the presence of alcohol. The hospital used a machine that is non-specific for ehtanol, what we drink when we sedate ourselves.
After her blood sample was destroyed, and weeks after the tests were taken, police got a subpoena for her blood tests results. A toxicologist used those results to calculate that her blood alcohol level was .12. That is well above the legal limit of .08. Hence, she was charged with manslaughter and a slew of other charges revolving around the claim that she was intoxicated when she drove. She was not charged with driving under the influence; the evidence was infirm for that purpose.
The case turns on a battle of experts. The blood serum test is an enzyme based test involving oxidation of an enzyme known as alcohol dehydrogenase, produced in the liver. The state says the test is reliable, while acknowledging that lacate and other compounds produced by a body in trauma could contribute to a false positive. Our expert, a medical examiner from New York City, says the numbers aren't reliable given the condition of the client at the time the blood was drawn. Both experts agree that the preferred method of testing for blood alcohol content is gas chromatography as it discriminates between ethanol alcohol and related compounds. The hospital possessed no such machine.
Today, the jury wants to hear a read back of these two experts' testimony. We will sit for hours listening. It will be a special form of Hell for me. I find the trial of a case fascinating. But watching another try a case is like watching ice melt on a cool day. I will now have to watch myself. I am sure to find fault with each nonfluency and pause.
But the hottest coals in this inferno come of not knowing what becomes of the woman seated to my right. She is a beautiful young mother much loved by her surviving daughter. That the state would seek to imprison my client, as it seeks to do in this case, is beyond my comprehension. The state's decision to bring this case on blood evidence of such questionable pedigree strikes me as itself close to a criminal act.
So today we sit, and I, a man of little faith, come as close as I ever do to prayer.
Sunday, February 8, 2009
New Color: Curious Felon
When I was a youngster working my way through adolesence, it was a big deal to head off to the drug store and sneak a peak at Playboy and Penthouse magazine. On several memorable occasions, I found the courage to actually purchase copies and smuggle them home. I am grateful I did not come of age during the digital era; I might have done prison time for an out-of-control libido.
This afternoon, I learned of something called "sexting." Apparently, many teenagers now send nude images of themselves to friends. These photos, of course, can be passed along to others. As a result, teenagers are now becoming felons, engaged in the solicitation of child pornography.
Last month, three teenage girls were charged with distribution of child pornography in Western Pennsylvania. They sent pictures of themselves to three male classmates. The recipients were also charged with felonies. And in October, an eighth grader in Texas was corralled by the long arm of the law when a nude picture sent by a classmate was found on his cell phone. Appatently text isn't the only sort of message being sent by cell phone these days.
The National Campaign to Support Teen and Unplanned Pregnancy estimates that 20 percent of teens will admit to "sexting." Can you hear prosecutors gearing up for this new battleground in the war on lust?
We approach child sex crimes with something akin to hysteria. Zero tolerance, we say. Law makers say there must mandatory prison for all those found in possession of minors in salacious poses. I applaud the desire to protect children, but I wonder whether we're going too far.
There are dangerous sexual predators in the world. No question about it. And those who truck, barter and trade in despoiled innocence should be deterred. But lust comes in all sizes and shapes. Sometimes it is mere curiosity; other times, as in the case of children sending photos of themselves, it is mere curiosity. No every image of a child was captured by an exploiter, and not every person receiving a photograph is a predator.
Prosecutions for sexting look ridiculous. If two high schoolers exchange photos of their respective privates, neither should be incarcerated. It is simply a waste of precious societal resources to punish curiosity.
I don't know whether sex offenders are required to wear special prison uniforms of a given color. Perhaps a new color will be created for these uniforms. Offenders can wear them with a sign hanging around their neck: "I am curious felon."
This afternoon, I learned of something called "sexting." Apparently, many teenagers now send nude images of themselves to friends. These photos, of course, can be passed along to others. As a result, teenagers are now becoming felons, engaged in the solicitation of child pornography.
Last month, three teenage girls were charged with distribution of child pornography in Western Pennsylvania. They sent pictures of themselves to three male classmates. The recipients were also charged with felonies. And in October, an eighth grader in Texas was corralled by the long arm of the law when a nude picture sent by a classmate was found on his cell phone. Appatently text isn't the only sort of message being sent by cell phone these days.
The National Campaign to Support Teen and Unplanned Pregnancy estimates that 20 percent of teens will admit to "sexting." Can you hear prosecutors gearing up for this new battleground in the war on lust?
We approach child sex crimes with something akin to hysteria. Zero tolerance, we say. Law makers say there must mandatory prison for all those found in possession of minors in salacious poses. I applaud the desire to protect children, but I wonder whether we're going too far.
There are dangerous sexual predators in the world. No question about it. And those who truck, barter and trade in despoiled innocence should be deterred. But lust comes in all sizes and shapes. Sometimes it is mere curiosity; other times, as in the case of children sending photos of themselves, it is mere curiosity. No every image of a child was captured by an exploiter, and not every person receiving a photograph is a predator.
Prosecutions for sexting look ridiculous. If two high schoolers exchange photos of their respective privates, neither should be incarcerated. It is simply a waste of precious societal resources to punish curiosity.
I don't know whether sex offenders are required to wear special prison uniforms of a given color. Perhaps a new color will be created for these uniforms. Offenders can wear them with a sign hanging around their neck: "I am curious felon."
Thursday, February 5, 2009
Speedy Trials? Not In Connecticut
My bluff was called the other day. I was invited to serve on a committee of some sort composed of lawyers and judges. The topic was whether to use video conferencing in the state courts. I even got a nice letter from Chief Justice Chase Rogers thanking me for my service.
Of course, I returned the favor of selection with poor attendance at meetings. I made but one. Trials and other court commitments keep crowding my schedule. So I arrive, finally, at the point of this column: Can’t we do something about the length of time it takes cases to get to trial in this state? I am referring in this column to criminal trials.
A not uncommon call to my office consists of a person represented by another lawyer who wants a second opinion, reassurance that his lawyer is on the job, or simply to replace his or her current lawyer. Why? Nothing is going on in their case. The client’s life and liberty hangs in the balance. They are being pounded in the press with one-sided glosses of already one-sided warrants. They want relief, and they want it now.
But we know that a criminal accusation in Connecticut is not treated like an emergency. No, the slow acid-drip of prosecution more resembles the heartburn that comes of a too rich meal.
Speedy trials in Connecticut are a joke. By law, a person in jail, cloaked with the presumption of innocence, but unable to make bond, sits for eight months before he is eligible to request a speedy trial. Then the state must limp to the courthouse to begin jury selection within the next 30 days. Hence, a person who can’t make bond might wait nine months to see the whites of a juror’s eyes. That is a long, long time.
If you are lucky enough to make bond, then you wait a year before you can request a trial. The only folks who get a trial more quickly are those already serving a sentence. They can demand trial in 120 days.
I am fully cognizant that delay is sometimes a person’s best defense. I count it a good day in court when a lengthy delay results in lost evidence and a nolle. Such events are rare. Most often delay simply wreaks havoc with witnesses: they disappear, lose interest or simply forget things. I have used delay to the advantage of my clients, and I am shameless about it. The simple fact is that defense counsel has no duty to see that justice is done.
But delay most often simply works a hardship on clients.
I am in trial now in a difficult case involving the death of children. The underlying incident took place on July 4, 2007. Between trauma and trial, my client has needed reassurance that I was not goofing off. It was hard for the client to understand the pace. Other clients now raise questions. Several days ago, a man came to see me complaining that his lawyer wasn’t doing anything. The case was four months old. Why weren’t their answers to some pretty basic questions. No amount of explanation seemed to satisfy this client. Four months is the blink of a judicial eye in this state.
And another client presses me for answers on his case. His name has been ruined. Serious accusations have been lodged. We’ve been to court three times now and we still do even have the underlying police reports. Here’s why. The first court appearance was an arraignment. At the second, the state announced it was screening the case to transfer to a more serious court. On the last appearance, the case was transferred. Six weeks and all we’ve done is play footsy with the state. For all I know, this client complains to another lawyer about me. How do you report to a client that nothing has happened in his case during the past six months?
Delay makes molasses of justice. It breeds tension between lawyer and client. And it belies the significance of a prosecution. Speedy trials should mean something other than a long line at the butcher’s.
Reprinted courtesy of The Connecticut Law Tribune.
Of course, I returned the favor of selection with poor attendance at meetings. I made but one. Trials and other court commitments keep crowding my schedule. So I arrive, finally, at the point of this column: Can’t we do something about the length of time it takes cases to get to trial in this state? I am referring in this column to criminal trials.
A not uncommon call to my office consists of a person represented by another lawyer who wants a second opinion, reassurance that his lawyer is on the job, or simply to replace his or her current lawyer. Why? Nothing is going on in their case. The client’s life and liberty hangs in the balance. They are being pounded in the press with one-sided glosses of already one-sided warrants. They want relief, and they want it now.
But we know that a criminal accusation in Connecticut is not treated like an emergency. No, the slow acid-drip of prosecution more resembles the heartburn that comes of a too rich meal.
Speedy trials in Connecticut are a joke. By law, a person in jail, cloaked with the presumption of innocence, but unable to make bond, sits for eight months before he is eligible to request a speedy trial. Then the state must limp to the courthouse to begin jury selection within the next 30 days. Hence, a person who can’t make bond might wait nine months to see the whites of a juror’s eyes. That is a long, long time.
If you are lucky enough to make bond, then you wait a year before you can request a trial. The only folks who get a trial more quickly are those already serving a sentence. They can demand trial in 120 days.
I am fully cognizant that delay is sometimes a person’s best defense. I count it a good day in court when a lengthy delay results in lost evidence and a nolle. Such events are rare. Most often delay simply wreaks havoc with witnesses: they disappear, lose interest or simply forget things. I have used delay to the advantage of my clients, and I am shameless about it. The simple fact is that defense counsel has no duty to see that justice is done.
But delay most often simply works a hardship on clients.
I am in trial now in a difficult case involving the death of children. The underlying incident took place on July 4, 2007. Between trauma and trial, my client has needed reassurance that I was not goofing off. It was hard for the client to understand the pace. Other clients now raise questions. Several days ago, a man came to see me complaining that his lawyer wasn’t doing anything. The case was four months old. Why weren’t their answers to some pretty basic questions. No amount of explanation seemed to satisfy this client. Four months is the blink of a judicial eye in this state.
And another client presses me for answers on his case. His name has been ruined. Serious accusations have been lodged. We’ve been to court three times now and we still do even have the underlying police reports. Here’s why. The first court appearance was an arraignment. At the second, the state announced it was screening the case to transfer to a more serious court. On the last appearance, the case was transferred. Six weeks and all we’ve done is play footsy with the state. For all I know, this client complains to another lawyer about me. How do you report to a client that nothing has happened in his case during the past six months?
Delay makes molasses of justice. It breeds tension between lawyer and client. And it belies the significance of a prosecution. Speedy trials should mean something other than a long line at the butcher’s.
Reprinted courtesy of The Connecticut Law Tribune.
Wednesday, February 4, 2009
I Wish I Had An Opening Statement
Connecticut does not generally permit opening statements in criminal cases. Indeed, they are so rare I am aware of a case in which a brand new prosecutor once spent several days picking a jury. Once the group was emplaneled, the young woman stood up, looked at the jury, and gave an opening about the state's case. A motion for a mistrial was granted before she finished the first paragraph.
I am used to that rule. I think it justifiable as it gives me a free hand. I needn't make commitments to the jury early on. Reasonable doubt may be all the defense my client needs. It is the state's burden after all.
But I am wondering just now. Today is day two in a trial in which my client is alleged to have driven an automobile while under the influence of alcohol. A head-on collision resulted in the death of two of her young children, and injuries to to her surviving child. Both the client the the adult passengers of the other car were seriously injured.
The press has a copy of the warrant. It repeats the state's allegation that her bllod alcohol was .12 at the time of the accident. This is not a per se DUI case, so the blood numbers aren't conclusive proof. The state still needs to prove impairment. But the number is well over the .08 limit on the DUI side.
Of course, the warrant does not report all the reasons to doubt the test. The test was conducted two hours after the crash. It is in an enzyme test relying on an enzyme produced in the liver. Yet the client's liver was lacerated during the accident. What's more, the test does not discriminate between ethyl alcohol and other forms of alcohol. And trauma can yield abnormally high readings on the test. These are all reasons forensic labs don't rely on the test. We'll have to go over all that in painstaking detail on cross examination.
Public reaction to the case seems keyed to the press headlines, however. One paper, The Connecticut Post, ran a story that attracted more than 100 comments, many of them exuding hostility toward my client based simply on what they read. I worry now that jurors on this case will hear the number and shut down, just as many readers of the paper have.
Would opening statements matter in this case? I'll never know. For the next couple of weeks I will simply trust that jurors will obey their oaths and agree to listen to all of the evidence. Then I'll hope to walk my client out the door a free woman: The simple truth is that the dozen or so people she was with in the hours before the accident did not see her drinking and saw no evidence of impairment.
I am used to that rule. I think it justifiable as it gives me a free hand. I needn't make commitments to the jury early on. Reasonable doubt may be all the defense my client needs. It is the state's burden after all.
But I am wondering just now. Today is day two in a trial in which my client is alleged to have driven an automobile while under the influence of alcohol. A head-on collision resulted in the death of two of her young children, and injuries to to her surviving child. Both the client the the adult passengers of the other car were seriously injured.
The press has a copy of the warrant. It repeats the state's allegation that her bllod alcohol was .12 at the time of the accident. This is not a per se DUI case, so the blood numbers aren't conclusive proof. The state still needs to prove impairment. But the number is well over the .08 limit on the DUI side.
Of course, the warrant does not report all the reasons to doubt the test. The test was conducted two hours after the crash. It is in an enzyme test relying on an enzyme produced in the liver. Yet the client's liver was lacerated during the accident. What's more, the test does not discriminate between ethyl alcohol and other forms of alcohol. And trauma can yield abnormally high readings on the test. These are all reasons forensic labs don't rely on the test. We'll have to go over all that in painstaking detail on cross examination.
Public reaction to the case seems keyed to the press headlines, however. One paper, The Connecticut Post, ran a story that attracted more than 100 comments, many of them exuding hostility toward my client based simply on what they read. I worry now that jurors on this case will hear the number and shut down, just as many readers of the paper have.
Would opening statements matter in this case? I'll never know. For the next couple of weeks I will simply trust that jurors will obey their oaths and agree to listen to all of the evidence. Then I'll hope to walk my client out the door a free woman: The simple truth is that the dozen or so people she was with in the hours before the accident did not see her drinking and saw no evidence of impairment.
Tuesday, February 3, 2009
The Parable Project: The Campaign Planner
John Dominic Crossan considers Luke 14:31-32 to be an independent parable. I am not so sure that I can fathom this. Consider:
"Or suppose a king is about to go to war against another king. Will he not first sit down and consider whether he is able with ten thousand men to oppose the one coming against him with twenty thousand? If he is not able, he will send a delegation while the other is still a long way off and will ask for terms of peace."
This simply seems to be a call for prudence and planning. Nothing remarkable there.
But when the next verse is read, a different meaning emerges: "So likewise, whoseover he be of you that forsaketh not all that he hath, he cannot be my disciple."
So what is the message? Prudence or abandon. Or is abadonment the prudence recommended?
"Or suppose a king is about to go to war against another king. Will he not first sit down and consider whether he is able with ten thousand men to oppose the one coming against him with twenty thousand? If he is not able, he will send a delegation while the other is still a long way off and will ask for terms of peace."
This simply seems to be a call for prudence and planning. Nothing remarkable there.
But when the next verse is read, a different meaning emerges: "So likewise, whoseover he be of you that forsaketh not all that he hath, he cannot be my disciple."
So what is the message? Prudence or abandon. Or is abadonment the prudence recommended?
Qualified Immunity Gets More Teeth
I was getting ready to board a trans-contintental flight the other day when an email arrived: "Saucier v. Katz" has just been over-ruled." I was overjoyed for a distracted moment, and then a small voice asked: "What was it that Erwin Chemerinsky said?"
Saucier v. Katz, 533 U.S. 194 (2001), is one of those cases I simply do not understand. Oh, I get the case's holding all right, and I understand the rule of law it announces: Unreasonable force claims against police officers are subject to qualified immunity. What I do not understand is how the court reached the decision it did. Here's the problem:
To prevail on an unreasonable force claim against a cop arising under 42 U.S.C. Section 1983, you most show that the use of force by a police officer is objectively unreasonable. In other words, you must show that a reasonable police officer would not have believe he was justified in, let's say, clocking an unresisting kid in the head with a nightstick. Such claims are typically proven by contrasting an officer's training with his behavior.
Often these cases turn on whether the plaintiff was resisting arrest. Plaintiff: "I was just standing there when the officer belted me." Defendant: "The subject struggled and I applied reasonable measures for officer safety." There's a dispute of fact threre that should require a jury to sort it all out.
But not so fast. Qualified immunity is a judicial doctrine the gives the benefit of the doubt to police officers in close cases and immunizes them from a law suit. Think of a board game. We're all pawns on life's board; what we can do to one another is defined and limited by the rule of law. Those folks making the rules say some pieces can't be touched; those pieces enjoy immunity. In legalspeak, one way to get qualified immunity is if reasonable officers disagree about whether the conduct in question was unlawful. Another is to prove that the right they are said to have violated was not clearly established at the time.
Head hurting yet? Try this on for size. There is no doubt that unreasonable force violates the constitution. Even so, in Saucier v. Katz the Court concluded that objectively unreasonable conduct might be reasonable after all, at least in the mind of some officers. Hence, the general rule is swallowed by a particular opinion. Put another way, sometimes it is reasonable to be unreasonable. I struggle with this.
So the thought of Saucier being overruled delighted me. But then I recalled hearing Chemerinsky speak last year at Georgetown's annual CLE on 1983 litigation. He warned that Pearson v. Callahan was yet to be decided. This case would, he concluded, resolve the so-called "order of battle" problem. (P.S. This year's Georgetown seminar is April 16 and April 17 in Washington, D.C. It is well worth attending.)
This is legal arcania, but it matters in the hurly-burly of litigation. Saucier required Court's reviewing claims of police misconduct to first decide whether there are facts making out a constitutional violation. Once that was done, courts could turn to whther the unlawfulness of the conduct was clearly established. This required cases to linger on the docket some while lawyers developed facts to support their claims.
No more, said the Supreme Court. District Courts are now free to parse claims as they see fit. Police need not be encumbered quite so often by the inconvenience of answering questions about their conduct.
This might not seem like such a big deal to non-lawyers, but it will matter greatly to civil rights lawyers. What the Supreme Court has said is that it is all right for lower courts to cut to the chase without a complete factual record. In other words, qualified immunity just got a whole lot easier to grant, and, as a result, the ability to hold police officers accountable for civil rights violations just got a whole lot more difficult.
I've avoided writing about this for several weeks because it has the feel of commenting on a necessary piece of dental works. It hurts; it is foreseeable; there is nothing that can be done about it. The decisions trickling out of the Court this term are an authoritarian's dream come true.
Saucier v. Katz, 533 U.S. 194 (2001), is one of those cases I simply do not understand. Oh, I get the case's holding all right, and I understand the rule of law it announces: Unreasonable force claims against police officers are subject to qualified immunity. What I do not understand is how the court reached the decision it did. Here's the problem:
To prevail on an unreasonable force claim against a cop arising under 42 U.S.C. Section 1983, you most show that the use of force by a police officer is objectively unreasonable. In other words, you must show that a reasonable police officer would not have believe he was justified in, let's say, clocking an unresisting kid in the head with a nightstick. Such claims are typically proven by contrasting an officer's training with his behavior.
Often these cases turn on whether the plaintiff was resisting arrest. Plaintiff: "I was just standing there when the officer belted me." Defendant: "The subject struggled and I applied reasonable measures for officer safety." There's a dispute of fact threre that should require a jury to sort it all out.
But not so fast. Qualified immunity is a judicial doctrine the gives the benefit of the doubt to police officers in close cases and immunizes them from a law suit. Think of a board game. We're all pawns on life's board; what we can do to one another is defined and limited by the rule of law. Those folks making the rules say some pieces can't be touched; those pieces enjoy immunity. In legalspeak, one way to get qualified immunity is if reasonable officers disagree about whether the conduct in question was unlawful. Another is to prove that the right they are said to have violated was not clearly established at the time.
Head hurting yet? Try this on for size. There is no doubt that unreasonable force violates the constitution. Even so, in Saucier v. Katz the Court concluded that objectively unreasonable conduct might be reasonable after all, at least in the mind of some officers. Hence, the general rule is swallowed by a particular opinion. Put another way, sometimes it is reasonable to be unreasonable. I struggle with this.
So the thought of Saucier being overruled delighted me. But then I recalled hearing Chemerinsky speak last year at Georgetown's annual CLE on 1983 litigation. He warned that Pearson v. Callahan was yet to be decided. This case would, he concluded, resolve the so-called "order of battle" problem. (P.S. This year's Georgetown seminar is April 16 and April 17 in Washington, D.C. It is well worth attending.)
This is legal arcania, but it matters in the hurly-burly of litigation. Saucier required Court's reviewing claims of police misconduct to first decide whether there are facts making out a constitutional violation. Once that was done, courts could turn to whther the unlawfulness of the conduct was clearly established. This required cases to linger on the docket some while lawyers developed facts to support their claims.
No more, said the Supreme Court. District Courts are now free to parse claims as they see fit. Police need not be encumbered quite so often by the inconvenience of answering questions about their conduct.
This might not seem like such a big deal to non-lawyers, but it will matter greatly to civil rights lawyers. What the Supreme Court has said is that it is all right for lower courts to cut to the chase without a complete factual record. In other words, qualified immunity just got a whole lot easier to grant, and, as a result, the ability to hold police officers accountable for civil rights violations just got a whole lot more difficult.
I've avoided writing about this for several weeks because it has the feel of commenting on a necessary piece of dental works. It hurts; it is foreseeable; there is nothing that can be done about it. The decisions trickling out of the Court this term are an authoritarian's dream come true.
Sunday, February 1, 2009
The Parable Project: A Marginal Jew
I've been getting plenty of emails on a private account in response to a piece I wrote not long ago on my renewed interest in the historical Jesus. A few folks are hoping that I see a light of some sort. Several others have made recommendations for future reading. I am compiling a reading list and working my way through the material.
Perhaps the most impressive piece of scholarship I have thus far tackled is volume one of John P. Meier's A Marginal Jew: The Roots of the Problem and the Person (Doubleday, New York, 1991). This is the first of a four-volume study. Volume four is expected out sometime this spring, I am told.
Meier is a Catholic priest and professor of the New Testament at the University of Notre Dame in Indiana. His work, however, is not theological. His goal is to apply the best methods available to historians to discern what can be known about Jesus. While his faith unquestionably colors his commitment to the project, he is quick to note the influence of his beliefs; I recommend the footnotes as a means of tracking the author's engagement with his faith as he confronts the historical record.
Central to Meier's work is the paradoxical character of the research project. A conventional biography of Jesus is impossible, given the paucity of contemporary material. Even the Gospels were written decades after the crucifixion. From the standpoint of a trial lawyer, there is nothing but rank hearsay in the record; hence no admissible evidence about the real Jesus. (The fundamentalist staple of Biblical inerrancy is theology not history.)
Even with so little evidence, Jesus's influence is an historic fact, as is his contemporary relevance. We seem to live on uneasy terms with this man from Nazareth, or is it Bethlehem? I tour bookstores everywhere I go. The other day I was in the Elliot Bay bookstore in Seattle, a true gem of a shop with books on every conceivable topic. Odd, I noted, that the Bibles and books on the Bible where hidden in an obscure corner. That is by no means uncommon in other shops. Are we ashamed of our cultural heritage?
We can make judgments about what is reliably attributable to Jesus. The so-called historical Jesus is a construction of this reality. It is not the still small voice of those who claim to converse with the living God, and it may not be enough to satisfy the hunger for something real in a world of flux. But it is something, even if it falls far short of the theologian's portrayal of the man, or is it God, or is it God and man?
Meier devotes 200 pages of this work to basic problems of historiography. Indeed, nearly 500 pages of text serve mostly to introduce the actual study of Jesus which commences in volume two, a massive, door-stopping thousand plus pages of scholarship. The first volume was pure pleasure; I started the second yesterday and was much in the frame of mind of a marathon runner toeing up to the line on a hilly course. Will I be up to the challenge?
The work is part of the The Anchor Bible Reference Library by Doubleday.
Perhaps the most impressive piece of scholarship I have thus far tackled is volume one of John P. Meier's A Marginal Jew: The Roots of the Problem and the Person (Doubleday, New York, 1991). This is the first of a four-volume study. Volume four is expected out sometime this spring, I am told.
Meier is a Catholic priest and professor of the New Testament at the University of Notre Dame in Indiana. His work, however, is not theological. His goal is to apply the best methods available to historians to discern what can be known about Jesus. While his faith unquestionably colors his commitment to the project, he is quick to note the influence of his beliefs; I recommend the footnotes as a means of tracking the author's engagement with his faith as he confronts the historical record.
Central to Meier's work is the paradoxical character of the research project. A conventional biography of Jesus is impossible, given the paucity of contemporary material. Even the Gospels were written decades after the crucifixion. From the standpoint of a trial lawyer, there is nothing but rank hearsay in the record; hence no admissible evidence about the real Jesus. (The fundamentalist staple of Biblical inerrancy is theology not history.)
Even with so little evidence, Jesus's influence is an historic fact, as is his contemporary relevance. We seem to live on uneasy terms with this man from Nazareth, or is it Bethlehem? I tour bookstores everywhere I go. The other day I was in the Elliot Bay bookstore in Seattle, a true gem of a shop with books on every conceivable topic. Odd, I noted, that the Bibles and books on the Bible where hidden in an obscure corner. That is by no means uncommon in other shops. Are we ashamed of our cultural heritage?
We can make judgments about what is reliably attributable to Jesus. The so-called historical Jesus is a construction of this reality. It is not the still small voice of those who claim to converse with the living God, and it may not be enough to satisfy the hunger for something real in a world of flux. But it is something, even if it falls far short of the theologian's portrayal of the man, or is it God, or is it God and man?
Meier devotes 200 pages of this work to basic problems of historiography. Indeed, nearly 500 pages of text serve mostly to introduce the actual study of Jesus which commences in volume two, a massive, door-stopping thousand plus pages of scholarship. The first volume was pure pleasure; I started the second yesterday and was much in the frame of mind of a marathon runner toeing up to the line on a hilly course. Will I be up to the challenge?
The work is part of the The Anchor Bible Reference Library by Doubleday.
Biglaw Gets A Wakeup Call: The Goose Is Sterile
News flash: Clients are balking at the legal fees charges by megafirms. Question: What took so long? You can spend $800 an hour for a lawyer at Manhattan's Cravath, Swaing & Moore. That is $13.33 per minute. But the firm probably charges in tenths of an hour, or perhaps two tenths of an hour, as is the growing trend among the law's self-proclaimed elite. Want to check in with your big-time lawyer? Make that $80 to $160 for "hello." Ask a substantive question, and he'll have to get back to you after a couple thousand dollars of research.
When the world seemed awash in easy cash, big business didn't mind these fees quite so much. But a tough economy has everyone on edge. So what's a white shoe firm to do?
Several have gone belly up in recent months. They just can't bill enough to keep their doors open and the Perrier flowing. Heller Ehrman and Thelen are no more, or so The New York Times reports. Rumor has it clients settled cases early to save legal fees.
The market for premium legal services is apparently changing. Some work is now being done on a flat-fee basis. In other instances, clients are building performance targets into their retainer agreements. In other words, big firms are learning to live by the same rules governing the rest of us. Hussle, push and scrap for your supper.
This is not a bad thing. Clients should receive value for their dollar. But, as one lawyer told the Times, " [t]he difficulty is, we don't really know what it costs us to do something."
No one does. Billing is always an art, and never really a science. Especially in criminal cases. Just how much time will you need to spend with a client who is faced with the loss of everything?Some folks don't want to hear from you; others need you all the time. Tell me, just how is a lawyer to know how to bill such a client?
New rules of professional conduct are transforming legal ethics from a paternalistic model in which the lawyer makes decisions and is bound only to keep clients reasonably informed of the scope and course of the proceedings, to an informed consent model, in which clients are to be consulted about all manner of things. It takes time to comply with the new ethics rules. And that results in higher fees.
In small firm practice there is a simple rule that practitioners avoid at their peril: It is called the up-front rule. You get paid once most often in this life. Oh that I had all the dollars I was promised, but which never arrived. And just try moving to withdraw if you have received most, but not all, of your fees. It is painful chasing overdue fees.
The death knell of billable hours is not necessarily a bad thing. But it will result in thorny ethics issues. How much of a fee is enough? And how do lawyers protect themselves when the work requested becomes far more complex than anticipated? And how much communication is ever enough for a person in crisis?
Biglaw welcome to the world of small firms. Roll up your sleeves and learn to sleep a little less soundly. Those things going bump in the night are the rules of professional conduct colliding with the economic reality of practicing law.
When the world seemed awash in easy cash, big business didn't mind these fees quite so much. But a tough economy has everyone on edge. So what's a white shoe firm to do?
Several have gone belly up in recent months. They just can't bill enough to keep their doors open and the Perrier flowing. Heller Ehrman and Thelen are no more, or so The New York Times reports. Rumor has it clients settled cases early to save legal fees.
The market for premium legal services is apparently changing. Some work is now being done on a flat-fee basis. In other instances, clients are building performance targets into their retainer agreements. In other words, big firms are learning to live by the same rules governing the rest of us. Hussle, push and scrap for your supper.
This is not a bad thing. Clients should receive value for their dollar. But, as one lawyer told the Times, " [t]he difficulty is, we don't really know what it costs us to do something."
No one does. Billing is always an art, and never really a science. Especially in criminal cases. Just how much time will you need to spend with a client who is faced with the loss of everything?Some folks don't want to hear from you; others need you all the time. Tell me, just how is a lawyer to know how to bill such a client?
New rules of professional conduct are transforming legal ethics from a paternalistic model in which the lawyer makes decisions and is bound only to keep clients reasonably informed of the scope and course of the proceedings, to an informed consent model, in which clients are to be consulted about all manner of things. It takes time to comply with the new ethics rules. And that results in higher fees.
In small firm practice there is a simple rule that practitioners avoid at their peril: It is called the up-front rule. You get paid once most often in this life. Oh that I had all the dollars I was promised, but which never arrived. And just try moving to withdraw if you have received most, but not all, of your fees. It is painful chasing overdue fees.
The death knell of billable hours is not necessarily a bad thing. But it will result in thorny ethics issues. How much of a fee is enough? And how do lawyers protect themselves when the work requested becomes far more complex than anticipated? And how much communication is ever enough for a person in crisis?
Biglaw welcome to the world of small firms. Roll up your sleeves and learn to sleep a little less soundly. Those things going bump in the night are the rules of professional conduct colliding with the economic reality of practicing law.
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