Hidden Bias and Fair Trials

You may serve on a jury one day, and if you do, your thought process will mean a lot to the people involved.

Those people, and the system as a whole, will rely on you to give them a fair trial.

To that end, one court has created a video to help potential jurors understand their hidden biases. These are the mental shortcuts we use to make decisions about people or things. We all have them, and they help us make sense of the world around us. We all have them because we’re all human, and we often don’t even realize it.

The thing is, they’re often wrong. For example, one study looked at scientists who were hiring a laboratory manager. The experiment was that all of them were given the exact same resume to review except some copies bore a man’s name and others a woman’s name. Well, guess what? Both male and female scientists scored the male candidate as more competent and worthy of the job even though the resumes were exactly the same. Without realizing it, these scientists harbored a hidden bias about gender, and it clouded their judgment.

The video is shown during jury selection in the U.S. District Court for the Western District of Washington. It features three people: the top federal prosecutor for the district, a senior trial judge there, and a prominent defense lawyer. The lawyer explains the value of talking about hidden bias this way:

“You have two choices: either talk about it or don’t talk about it, and haven’t we seen what happens when we don’t talk about it?”

The upside is that by taking the time to really think about things, and by taking in more information, we all make better decisions.

Back to Basics, Again

Speaking of the U.S. Supreme Court, we shouldn’t have to rely on the country’s highest court to decide some questions correctly. But we do.

This week, the Court issued a friendly reminder about the presumption of innocence.

If you’re convicted of a crime, but your conviction is overturned on appeal, and there won’t be a retrial, the government has to return any money that you paid toward fines, fees, or restitution because you’re presumed innocent again. You’re presumed innocent until you’re proven guilty beyond a reasonable doubt in a fair trial where the verdict holds up. Until then, the government can’t make you prove your innocence to get your money back.

Here’s what happened. In two separate cases, a man and woman were convicted at trial, and they were ordered to pay fines, fees, and restitution as a result. Then both had their convictions reversed on appeal. One was retried but acquitted. The other wasn’t retried because the state dropped the case.

With the charges dismissed, the defendants asked for their money back, but they lost in the state courts because a new state law required them to sue for their money and prove their innocence by clear and convincing evidence.

But that can’t be right, and it wasn’t. Without a conviction, the state had no right to their money, and under the Due Process Clause of the U.S. Constitution, it couldn’t shift the burden of proof to them to prove their innocence.

Good for them that the court of last resort got it right.

But that court hears fewer than two percent of all potential cases each year. And it wouldn’t have heard these cases, either, if it weren’t for a pro bono clinic at the UCLA School of Law.

The New Justice of the U.S. Supreme Court

Now that Neil Gorsuch has been sworn in, we’ll begin to find out how he wields the law as a member of the highest court in the land.

Some say he’s a natural successor to the Justice whose seat he fills, Antonin Scalia. Here is a profile of Mr. Gorsuch that compares his views to those of Mr. Scalia on matters of criminal law, interstate commerce, and more.

Justice Scalia’s legacy may be complicated, but he defended the rights of the accused in important ways. He championed the right of confrontation, for example. It’s in the Sixth Amendment, and it means that if you’re charged with a crime, your accusers must take the witness stand, testify under penalty of perjury, and face cross-examination in open court. They can’t hide behind hearsay and innuendo. Scalia also championed your right to a trial by jury—that dwindling bastion of freedom and democracy—and he looked after the Fourth Amendment in an age of new technologies.

We hope Justice Gorsuch hews to that heritage and builds on it. Justice Scalia, for example, didn’t care much for the Miranda rule, but we may come to appreciate it more in this century than we did in the last. We may feel differently about the meaning of due process when we see that governments can exercise total dominion over their citizens. We may value legal limits on their power more as we realize that no other limits exist.

To that end, some point optimistically to Gorsuch’s views on overcriminalization, the rule of mens rea, and the rule of lenity.

Others are less sanguine about him in general.

But left, right, or center, most would agree, in the end, with this comment: “We think that all judges should look to the text and history of the Constitution. But [we hope] he will follow all parts of the Constitution, in particular those parts that were added in the 19th and 20th centuries that made our Constitution more equal, more just, more free and pushed us further down an arc of progress.”

Take the Money and Run

Kudos to the California Court of Appeal for enforcing due process and the rule of law.

Earlier this month, the Court took another stand on the law of asset forfeiture by siding with people who had sued to get their stuff back.

In three separate cases, the Court ordered the trial court to reinstate lawsuits brought by eight people from whom local police had taken a total of three cars and $28,257 in cash.

In each case, after police seized the property, they didn’t refer the matter to the district attorney’s office like they were supposed to. No one from a prosecutor’s office reviewed the cases beforehand and signed off on them.

Instead, police just issued forfeiture notices themselves and left it to people to file a claim.

But you can’t do that. The law specifically authorizes only a county’s district attorney or the state’s attorney general to file a forfeiture case in court or, for property worth $25,000 or less, to issue a notice of administrative forfeiture like the police did. For more background on California’s forfeiture laws, see here.

None of the people filed claims at first, but eventually, they lawyered up and sued.

They lost in the trial court after the government argued that they didn’t file administrative claims before suing in court and that they waited too long to sue when they did.

But they won on appeal. The Court ruled that the government failed to comply with the forfeiture statutes, so the forfeitures were invalid to begin with, and the state had no right to their property. The Court had made this point three years ago in a prior opinion, and apparently, it meant what it said.

A Tale of Two Rules for California Prosecutors

In the first days of fall, the Golden State has set forth two new, important rules to punish prosecutors who unreasonably, recklessly, or intentionally withhold evidence from the accused. One is a criminal statute that goes into effect next year. The other is an ethics rule that goes into effect if and when the state’s supreme court approves it. Both aim to create real consequences for prosecutors who wreck lives by committing Brady violations.

First, on September 30, Governor Brown signed California Assembly Bill 1909 into law. The new law makes it a felony for prosecutors to not disclose evidence or information that’s material to the outcome of a case if they do it intentionally and in bad faith. It used to be a misdemeanor at most. The new law is effective January 1, 2017. Here is the actual text:

A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any [evidence or information], knowing that it is relevant and material to the outcome of the case, with the specific intent that [it] be concealed or destroyed, or fraudulently represented as the original evidence … is guilty of a felony.

The crime is punishable by imprisonment for 16 months, two years, or three years.

Next, on October 1, the State Bar of California, which regulates the state’s lawyers, adopted proposed Rule of Professional Conduct 5-110 by an 11-1 vote. The new ethics rule would require prosecutors to disclose all evidence that they know, or reasonably should know, would be favorable to the accused. Here again is the actual text:

The prosecutor in a criminal case shall … make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the prosecutor that the prosecutor knows or reasonably should know mitigates the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

The proposed rule now goes to the California Supreme Court for approval.

Some say it’s the best of times; some say it’s the worst of times.

Either way, let’s make it better.

Do You Care About Justice?

Speaking of lies, there’s no shortage of them in an election year, but if you’re looking for a constructive way to sound off to the presidential candidates, here’s one.

The National Association of Criminal Defense Lawyers has sent each of the four candidates—Clinton, Trump, Johnson, and Stein—a questionnaire with fifteen questions about their views on the criminal-justice system.

The NACDL has created a website for the public to receive the candidates’ answers and pose their own questions. The website lists all fifteen questions, invites you to say which three are most important to you, and allows you to submit your own question for the candidates.

There’s also a short but compelling video on the Sixth Amendment and why it matters so much. It features interviews with a prosecutor, a retired police detective, a defense attorney, and former criminal defendants.

The website is called I Care About Justice, and you can find it at www.icareaboutjustice.org.

How to Assert Your Miranda Rights

Here’s a guide to your Miranda rights on the occasion of their 50th anniversary. It’s a rough composite of the current state of the law, but you should always consult a lawyer about your specific situation before consenting to an interview with law enforcement.

The first thing to understand is that the police don’t have to give you Miranda warnings until they take you into custody and try to interrogate you. If you’re not in custody then you are free to go, and you probably should, but if you don’t, the police are free to question you as much as you’ll let them, and they don’t have to give you any warnings about it. Even if they briefly detain you based on reasonable suspicion, which they’re allowed to do, they can still question you during the stop without giving you warnings, though you’re free to assert your rights and consult a lawyer before answering (and you should).

How do you know if you’re in custody? Well, if you’ve been arrested then you’re in custody. But even if you haven’t been arrested, the test is whether a reasonable person in your shoes would feel like he or she were free to leave. So if you’re not feeling the conversation but don’t know if you can leave, you should ask. Am I in custody? Am I free to go? If you’re free to go then you should go. If you’re not then you should assert your rights and consult a lawyer before answering any more questions.

Even once you’re in custody, the police don’t have to give you Miranda warnings until they begin to interrogate you. Interrogation means they’re either directly questioning you about your arrest or doing something else that’s likely to elicit an incriminating response. That may not include their basic booking questions about your name, address, height, weight, and other biographical information, so you may not hear those warnings for some time. Remember that you don’t have to answer any questions you don’t want to.

Now, let’s say you’re in custody and want to assert your rights. How do you do it?

You must speak up. You must claim your rights to benefit from them. So speak up. Say that you don’t want to talk at all and that you want to see a lawyer. You have to speak the words. If you don’t, someone may decide that you waived your rights or didn’t assert them in the first place. It may sound strange, but you don’t necessarily invoke your right to remain silent by staying silent, so don’t leave it to chance. As long as you’re talking or saying nothing, you haven’t claimed your rights, and the police don’t have to leave you alone. And most likely, they won’t. The only sure way to make them stop is to assert your rights by saying you don’t want to talk and you want to see a lawyer.

You must ask for a lawyer. You have two rights to assert: a right to remain silent and a right to a lawyer before any questioning. You should assert both. But if you’re picking just one (and there’s no reason for that), make sure to say you want a lawyer. If you just say you don’t want to talk, the police will have to stop the interrogation, but they won’t necessarily have to leave you alone for long, and they may be able to come back and try again within hours. But when you say you want a lawyer, you automatically invoke your right to remain silent, too, and you cut off any further attempts at questioning for at least fourteen days.

You must be clear. You must assert your rights clearly. You can’t be vague, ambiguous, or equivocal. You shouldn’t ask them for advice or permission. You must say that you want a lawyer, period. The law is that you must assert your rights clearly enough that a reasonable police officer under the circumstances would understand your wishes. Don’t leave it to chance. If you’re not clear, the police may do anything to keep you talking or listening so they can keep the interview going. They may sidestep what you said or ignore it altogether. They don’t necessarily have to clarify your wishes or respond to you at all. Below are four actual examples where courts have ruled that people did not clearly invoke their rights.

  • “Maybe I should talk to a lawyer.”
  • “I think I would like to talk to a lawyer.”
  • “I think it’d probably be a good idea for me to get an attorney.”
  • “I don’t want to talk about it.”

Stick to something like these instead.

  • “I don’t want to talk at all [anymore].”
  • “I don’t want to talk.”
  • “I want to remain silent.”
  • “I want a lawyer.”

You must repeat as necessary. You must insist on your rights. Don’t count on the police to scrupulously honor them. Repeat yourself as needed if they ignore you, talk over you, threaten you, or otherwise disregard your wishes. Keep saying that you don’t want to talk and you want to see a lawyer. Keep saying that and nothing else until they leave you alone. Then contact a lawyer immediately.

The 50th Anniversary of Miranda

“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law.”

This month marks the fiftieth anniversary of the U.S. Supreme Court’s seminal decision in Miranda v. Arizona.

To commemorate the occasion, here’s a great write-up on why the case matters so much and how we can do even better going forward.

But you should read the opinion for yourself if you can. It chronicles the history of the Fifth Amendment’s right against self-incrimination. It catalogues many of the standard police interrogation practices that remain current today. And it makes a moral case for an adversarial system that respects the dignity of its people over an inquisitorial system that simply overpowers them.

This last point becomes ever more important in our lifetimes as the balance of power between people and the state shifts decidedly, and permanently, in favor of the state.

Whether you read it or not, below is the core of the Miranda opinion, which describes what we’ve come to know as the Miranda warnings and which I’ve revised to make easier to read.

* * * * * *

We spell out our holding with some specificity in the pages that follow, but briefly stated, it is this: a prosecution may not use any statement that people make to police in a custodial interrogation unless it demonstrates that police used effective safeguards to protect the right against self-incrimination. By custodial interrogation, we mean any questioning that police initiate after they take people into custody or otherwise deprive them of their freedom of action in any significant way.

For the safeguards to be employed, we require the following procedures in the absence of other, fully effective ways to inform people of their right to remain silent and ensure they have a continuous opportunity to exercise it.

Before any questioning, the police must warn people that they have a right to remain silent; that any statement they make may be used against them as evidence; that they have a right to have an attorney there with them before they’re interrogated; and that they’re entitled to have an attorney appointed for them if they can’t afford one.

People may waive these rights as long as they do so knowingly, voluntarily, and intelligently. But they also reserve the right to change their minds and ask for a lawyer at any time, and if they do, the police must stop questioning them. The mere fact that people may answer some questions or volunteer some statements on their own does not deprive them of the right to refrain from answering further questions until they’ve consulted an attorney and consented to more questioning.

A Postscript to Last Week’s Open Letter

Following up on last week’s post, readers should understand the timeline of events that brought the misconduct to light. Here are the highlights.

  1. In January 2013, a defendant in a murder case filed a motion to get some important information from the prosecution. The trial court found good cause for the motion and granted it, but the district attorney’s office did not comply with the order.
  2. In January 2014, the defense filed three additional motions, alleging that the district attorney’s office was participating in a large-scale operation by the sheriff’s department to purposely violate the constitutional rights of defendants who were awaiting trial in the Orange County jail system.
  3. In February and March 2014, the trial court ordered evidentiary hearings to get to the bottom of these allegations. That is when the district attorney’s office began a campaign to retaliate against the judge.
  4. In August 2014, the judge issued his first decision in the matter. He found that law enforcement had committed due-process violations negligently but not maliciously, and he didn’t disqualify the district attorney’s office from the case.
  5. In December 2014, the judge reopened the hearings because the defense presented evidence that at least two senior sheriff’s deputies had lied during the initial hearings.
  6. In March 2015, the judge issued his second decision in the matter. He found that the two deputies had willfully lied or withheld material evidence during the first set of hearings, and he disqualified the district attorney’s office from the case because of what now appeared to be serious due-process violations:
  • “It is now apparent that the discovery situation in this case is far worse than the court previously realized. In fact, a wealth of potentially relevant discovery material … remained secret, despite numerous specific discovery orders issued by this court.”
  • “After a period of what can at best be described as benign neglect concerning the actions of his law-enforcement partners, the District Attorney cannot or will not in this case comply with the discovery orders of this court.”
  • “In this case, the District Attorney’s conflict of interest is not imaginary. It apparently stems from his loyalty to his law-enforcement partners at the expense of his other constitutional and statutory obligations.”

An Open Letter to the District Attorney of Orange County

Mr. Rackauckas: Just what is going on in your office, sir?

I’m not talking about the fight that broke out in a county courthouse three weeks ago between one of your investigators and a defense attorney. Never mind that if a defense attorney did this to a cop, he’d be arrested so fast his head would spin. (Full disclosure: I met this lawyer two weeks ago at a bar association event and had lunch with him on Monday. Although he’s told me his side of the story, he wasn’t trying to sell anything, and I wasn’t looking to buy, either.) But that’s not the issue here.

I’m not even talking about the jailhouse snitch scandal that led to the fight and that has roiled your office—and my county—for two years now since it’s come to light. Plenty of ink has already been spilled about it, including in a letter to the U.S. Attorney General last November by a coalition of legal authorities, who called on the Justice Department to investigate the scandal. But that’s not it, either.

No, I’m wondering about your office’s response to the scandal, and specifically, the way it has retaliated, systematically, against the trial judge who ordered the hearings that brought the misconduct to light.

I couldn’t believe it at first.

More than once after the scandal broke, I had attended events at which some of your senior deputies expressed both regret and resistance over the news. By turns, what I heard from them was that, yes, some mistakes were made, and we understand your concern, but please don’t blow it out of proportion, give us the benefit of the doubt, and by the way, we’re already doing better and will continue to do better.

Then I learned that, in December, a supervising judge of the superior court had to take your office to task for repeatedly using a procedural tool to disqualify the trial judge from 94% of the murder cases that he’s been assigned to since he began scrutinizing your misconduct. That’s 46 out of 49 murder cases, sir. Your office never did that before, and this to a judge who’s among the more experienced, independent, and respected on the felony trial panel. (Full disclosure: I have a white-collar case pending before this judge.)

The supervising judge found that your office had violated the separation of powers under the state and federal constitutions, and he rightly called it an attempt to punish, silence, and intimidate the trial judge as well as send a signal to the rest of the bench. It’s a national story, and the Orange County Bar Association has taken a stand against it.

I’m wondering if you think this demonstrates good faith by an office whose mission is to “enhance public safety and welfare and create a sense of security in the community through the vigorous enforcement of [the] laws in a just, honest, efficient, and ethical manner.”

Sometimes, the right thing to do is take your lumps and stand down, but instead, your office has chosen to appeal the supervising judge’s order, taking the position that you did not direct your deputies to retaliate against the trial judge.

But either you directed them, sir, or you are not sufficiently in command of your office.

Which is it?

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