Man Gets Indicted By His Pacemaker

Actually, the case was indicted by a grand jury in Ohio, which charged him with arson and insurance fraud.

Apparently, the man called 911 as his home burned in the background. He said he was sleeping when the fire started and that, in a hurry, he packed a bunch of bags, broke a window with his cane, threw the bags out the window, and carried them away. He mentioned that he had a pacemaker.

The police came to suspect him of arson. They say they found gasoline on his shoes, pants, and shirt, and they believe the fire had multiple points of origin from outside the house.

So they got a search warrant for the data from his pacemaker. That gave them a historical record of his heart rate and rhythms before, during, and after the fire.

Reportedly, the data showed that the man was active when he was supposed to be asleep, and a cardiologist has said it was “highly improbable” that he could carry out the strenuous activities he described.

If At First You Don’t Succeed

Here’s that DUI case we alluded to last week.

It’s based on a driver’s challenge to his license suspension after his arrest. His post-arrest blood test showed a blood-alcohol concentration (or BAC) of 0.23 percent. He challenged this finding at the DMV’s administrative hearing and lost. He then petitioned the superior court to overturn that finding and lost again.

After twice losing before the agency and the trial court, he took another swing in the court of appeal, and there, he won.

The issue was whether his blood-test result was reliable.

The crime lab had tested his sample using a machine called a gas chromatograph. It has a heated chamber with two columns through which a sample is passed in gaseous form, and therein lies the rub. You’ve got to use both of those columns. One isn’t enough. Otherwise, you may get a false positive or the machine may indicate more alcohol than actually exists.

According to the driver’s expert and even the machine’s own manufacturer, one column could “tentatively identify” alcohol but “simply [could not] confirm its identity” or “how much might be present.”

In this case, the lab used the right machine, but the test results showed data from only one column, and the DMV didn’t offer any proof to show otherwise.

Thus the DMV could not rely on the test results because, as a matter of scientific principle, one column’s result was incapable of establishing the driver’s BAC.

And so the court of appeal reversed.

The Age of Innocents

Ten times a month.

That’s how often an innocent person is freed from prison in our country, according to this 60 Minutes segment that aired Sunday night. And those are just the ones we know about.

I suspect the number comes from the National Registry of Exonerations, which recorded 125 exonerations in the year 2014. That year set a new record for known exonerations since the National Registry started keeping track of them. It exceeded the previous record, from 2013, by 37 percent. They don’t have last year’s tally yet, but you can browse the Registry’s website here, and you can read more stories about known exonerations here and here.

The 60 Minutes segment featured interviews with the following three people who lost large chunks of their lives to wrongful convictions.

The first is a black man from Alabama who spent thirty years on death row before he was exonerated last April. He was convicted based on a witness’s misidentification, and after thirty years in prison, he’s still learning that he’s free to shower every day if he wants to and that he doesn’t have to get up for breakfast at 3am. He’s never received a nickel of compensation or an apology from the state.

The second is a white man from Connecticut who spent 21 years in prison for rape and murder before DNA evidence cleared him. His conviction was based on misidentifications by witnesses who collected a $20,000 reward. He’s doing better now, but after his release, he would sometimes barricade himself in his closet and sleep there because he was afraid someone would kick his door down and drag him back.

The third is a white woman from Michigan who spent over five years in prison for child abuse before new medical evidence freed her. She was convicted because emergency-room doctors suspected her of shaking her sister’s baby, whom she was raising, to the point of brain damage. As it turned out, the baby had suffered a natural stroke. After her release, the woman found herself homeless for a time because she couldn’t find a job; she had a five-year gap on her resume to explain, and when she’d tell potential employers the truth, she never heard back. She’s never received any support or compensation from the state.

As a defense lawyer who pays attention to these stories, I come across one or more of them each week. Here’s another one from last October about a man in California who was cleared of child molestation after fifteen years in prison. And here’s another about a man from New York who was released after 25 years for arson and murder charges that were based on junk science. They are products of a human system that makes mistakes as often as we do.

And these are just the ones we know about.

The Surprisingly Imperfect Science of DNA Testing

That’s the title of this in-depth look at DNA testing through the lens of one cold murder case.

Although DNA evidence is widely regarded as the gold standard of forensic science, we should be careful about checking our brains at the courtroom door just because the government exclaims, DNA!

The science works well when we can test an ample, well-preserved sample of a person’s DNA, and when it’s obvious how the sample got to the alleged crime scene, and when investigators and crime labs don’t make mistakes in collecting and testing it.

But that’s not the norm, of course.

The reality is we’re not always able to collect enough DNA to test well. The sample may be too small, or it may have degraded over time, or it may be mixed up with other people’s DNA. In one case, police had collected a partial sample from blood that was found at the scene of a burglary, and it seemed to match the profile of one man definitively. The only problem was that the man suffered from advanced Parkinson’s disease and could barely walk, which made him an unusual burglary suspect. The police arrested him anyway, though, because the odds were supposedly only one in 37 million that it was someone else. Those odds were wrong, however, and later, more advanced testing revealed that the man shared a partial profile with the true culprit.

Nor is it always clear how our DNA ends up where it does. The reality is our cells often find their way into our environment, and sometimes, our DNA winds up in places we’ve never been. In one case, police had discovered the DNA of a homeless man on the fingernails of a murder victim, so they arrested the man even though he seemed to have an airtight alibi: he was unconscious in a hospital bed at the time of the murder. The man ended up spending five months in jail until the authorities realized why his DNA was on the victim’s fingernails. The same paramedics who’d transported him to the hospital had responded to the murder afterward, and they’d clipped the same oxygen-monitoring probe to both persons’ fingers.

Finally, human error can affect the collection, preservation, and testing of DNA evidence at each link in the chain of custody as well as afterward, when analysts may need to interpret test results. While some crime labs are better than others, interpretation begets subjectivity, and subjectivity breeds error. A recent government survey, for example, asked 108 labs to look at a three-person mixture and determine whether a suspect’s DNA was present in the sample. Fully 70 percent of the analysts determined that it could be in the mix, while 24 percent said the data was inconclusive. Just six percent determined correctly that it was not.

FBI Acknowledges Rampant Errors in Microscopic Hair Analysis

On Monday, the FBI and the Justice Department announced the first results of a large-scale project called the Microscopic Hair Comparison Analysis Review, and they weren’t good.

Here’s how the Washington Post broke the story:

“The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”

It’s unfortunate, but it’s true. Here’s a copy of the press release from the FBI’s website. It’s a story that’s traveled across the country and around the world.

The three-year-old project to review these cases was spurred by three high-profile exonerations, beginning in 2009, of men who were convicted at least in part by testimony from the FBI’s unit for microscopic hair analysis. That same year, the National Academy of Sciences released a landmark report on the state of forensic science in America, and it referred to the practice of using only microscopic hair comparison to connect a defendant to a crime, without DNA testing, as “highly unreliable.”

Since then, the government has partnered with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) to review the FBI’s cases and determine whether its examiners made erroneous statements that favored the prosecution—by, for example, implying a definitive match or otherwise overstating their findings. The project focuses on cases from before the year 2000, when the Bureau fully deployed mitochondrial DNA testing of hair samples.

So far, the FBI has searched more than 21,000 cases in which the unit was asked to perform microscopic hair analysis, and of those, it has identified nearly 3,000 cases in which examiners submitted a written report or testified at trial.

Of these 3,000 cases, the Bureau has reviewed about 500 so far, including 268 trials.

The results? Of the 268 trial transcripts reviewed so far, examiners made erroneous statements in 257 of them, or 96%. Every one but two of the unit’s 28 examiners made erroneous statements in their reports or testimony. Of the 35 cases that resulted in the death penalty, they made errors in 33 of them (94%). Nine of these defendants have been executed already, and five more have died of other causes while on death row.

According to Peter Neufeld, a co-founder of the Innocence Project, “These findings confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecution’s case.”

Adds Norman Reimer, executive director of the NACDL, “It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed.”

The FBI has agreed to provide free DNA testing in response to a court order or a request by the prosecution, and in federal cases, the Justice Department will not oppose new-trial petitions for procedural reasons like the statute of limitations.

The majority of the FBI unit’s testimony, however, was provided in state cases, and it’s unclear whether individual states will follow suit.

Nor does the project pertain at all to the many thousands of cases in which microscopic hair analysis was performed by state or local crime labs.

Mother of Five Gets New Trial on Capital Murder Conviction

Have you heard of Hannah Overton? She’s spent the last seven years serving a sentence of life without the possibility of parole for the murder of her four-year-old, then-soon-to-be-adopted son. But this September, the Texas Court of Criminal Appeals, which is that state’s supreme court for criminal cases, reversed her conviction and sent it back to the office of the district attorney that prosecuted her. At the original trial, the prosecutor argued that Ms. Overton tortured and killed the boy by force-feeding him salt because she couldn’t cope with his behavior. Apparently, the jury didn’t buy that, but it did convict her on an alternative theory of murder “by omission” on the ground that she did not get him medical attention quickly enough when he fell ill.

The case has created quite a stir, and you can find some local, national, and international coverage of it here, here, herehere, and here.

Ms. Overton has maintained her innocence all along, and after her conviction was reversed, she and her defenders hoped that prosecutors would not re-file the case, but they had no such luck. A couple weeks ago, the district attorney announced that his office would retry her on the original capital-murder charge.

In the meantime, family members say they have faith she will finally come home soon. One of them, Lucy Frost, wrote an open letter recently to the Journal of the American Bar Association, and the text of her letter follows below:

“Regarding ‘The Age of Innocents,’ September, page 54:  I have a family member, Hannah Overton, serving life without parole for a crime that I and others know did not occur. The Texas Court of Criminal Appeals overturned the capital conviction on Sept. 17. Now we await decisions on bail and retrial.

All the post-conviction hearings and appeals in her case suggest prosecutorial misconduct, police misconduct and a tunnel-vision investigation, as well as a medical examiner who appears to me to have been squarely on the prosecution team.

I use the qualifiers “suggest” and “appears to me” because she is legally not yet exonerated. I am 100 percent certain she is innocent. This was a tragic, accidental death of a child—not capital murder.

To say that I have lost faith in our criminal justice system would be an understatement. As a citizen, I pray it can be reformed. Because of Hannah’s case, I have come to know and believe many things, including:

  1. A national innocence board is needed—similar to the National Traffic Safety Board—a federal agency that independently investigates every exoneration and wrongful conviction, then trains and advises all parties on how to avoid the errors that led to them.
  2. The death penalty should be abolished. The system is too vulnerable to errors. I have no doubt that innocent people have been executed in this country.
  3. Prosecutors must be better trained, and there must be oversight of this role. There appear to be no checks and balances on them. Absolute power corrupts, absolutely.
  4. An innocent person must get the advice of an attorney immediately, even when they believe there has been no crime committed and they know they are innocent. The authorities are not going to figure out what happened. Sad but true is the fact that innocence is no protection.”

Trombetta-Youngblood and the Problem of Bad Faith

As we noted last week, a court may dismiss your criminal case if the government destroyed or failed to preserve evidence that was potentially favorable to your defense.

If you make that argument, however, the court will engage in a two-step analysis, the first step of which will ask how favorable or exculpatory the lost evidence was (or could have been).

If the evidence had exculpatory value that was obvious or apparent at the time it was destroyed, and there’s no other way for you to obtain comparable evidence by reasonably available means, then you win because it’s an automatic due-process violation for the government not to preserve it. California v. Trombetta (1984) 467 U.S. 479, 488-90 (holding, however, that the government did not need, as a matter of course, to preserve all breath samples underlying its breath tests in drunken-driving cases).

But if the evidence was only potentially useful to your defense, then you must show bad faith by the government in destroying or failing to preserve it. Arizona v. Youngblood (1988) 488 U.S. 51, 58. See also Illinois v. Fisher (2004) 540 U.S. 544, 548-49. Accord City of Los Angeles v. Superior Court (2002) 29 Cal. 4th 1, 8.

These motions to dismiss for due-process violations are commonly referred to as Trombetta-Youngblood motions.

Often, the problem is in proving bad faith, as the Youngblood case itself illustrates. In 1985, Larry Youngblood was convicted of kidnapping and child molestation. Unquestionably, a ten-year-old boy had been abducted and molested by a middle-aged man. The victim, who described the man as having a disfigured right eye, was taken to a hospital, where semen samples were collected from his body and clothing. Nine days later, the boy picked out Youngblood, who had a bad left eye, from a photographic lineup, and later at trial, he identified him again in court. In the meantime, the government failed to properly test the samples before they had degraded, and it failed to properly store the clothing so it could be tested at all.

Although Youngblood maintained his innocence at trial, the jury convicted him largely on the basis of the victim’s identification. His state conviction was reversed on appeal, but the U.S. Supreme Court reversed that reversal in the opinion that bears his name. In the end, he couldn’t show bad faith, just negligence.

Then in 2000, at the request of his lawyers, the police retested the degraded evidence using new DNA technology. The results cleared him. Furthermore, they matched the profile of another man who was already in prison for two sex assaults against children, and that man ended up pleading to the crime. And he had a bad right eye. Youngblood, for his part, died in 2007, having never obtained redress for the years he spent being called a child molester.

A National Consensus: Cell-Phone Location Records are Private

That’s according to this summary of the emerging law in states and federal courts across the country regarding your phone’s cell-site location data. Those are the logs and records of the cell towers that your phone is constantly connecting or attempting to connect to as you go about your business. Your phone has to do that in order to be able to make or receive calls because your phone is, essentially, a radio. It emits and absorbs radio waves to and from those cell towers, which are called cell sites, in order to carry the sound of your voice across hundreds or thousands of miles. By doing so, however, your phone creates a fairly precise record of everywhere you roam. It’s a tracking device.

Courtesy of the Electronic Frontier Foundation, this summary captures the trends and trajectories of countrywide answers to this question: Do Americans have an expectation of privacy in the location information generated by their cell phones (or other devices)?

To many, the answer is obvious. If someone followed you everywhere you went for long stretches of time, or perhaps any stretch of time, you’d probably call the cops (if they weren’t the ones doing it). Although we may choose at times to broadcast our location through social media or otherwise, cell-site information is different because it’s not really voluntary. In fact, it’s impossible to participate in contemporary society without carrying a cell phone and creating these records. For the vast majority of Americans, a cell phone is the only phone they have, and there is no other way to use the technology than by creating such records and entrusting them to a service provider.

So argues the EFF in a brief it filed two weeks ago in support of a warrant requirement for cell-site location data. The impetus for the brief came when a federal judge denied a government request for such data and asked the government to explain why it believed it did not need a warrant to get them. The court also asked the federal public defender’s office to file a brief on the issue, and the EFF, among others, filed amicus curiae briefs in support of their positions.

The tide may be turning in favor of protecting such data, as the EFF’s summary and brief explain. In 2012, five justices of the U.S. Supreme Court recognized that it was a “search” within the meaning of the Fourth Amendment to affix a tracking device to someone’s car for an extended period of time. See United States v. Jones, 132 S. Ct. 945 (2012). Since then, the legislatures of five states—Maine, Utah, Montana, Colorado, and Minnesota—have passed laws requiring search warrants to obtain cell-site or electronic location data, and the supreme courts of two other states—New Jersey and Massachusetts—enshrined a warrant requirement in their state constitutions. Three other states—Virginia, Wisconsin, and Indiana—have passed laws that require warrants to track a cell phone in real time, though perhaps not for historical data. And just this month, Missouri passed a constitutional amendment of all things to protect all electronic data and communications. These states join four others—New York, Hawaii, Oregon, and Washington—that already required a warrant to track people’s movements electronically.

To be sure, battlegrounds remain. In 2013, the federal court of appeals that covers Texas, Louisiana, and Mississippi went the other way, holding not just that it was okay for the government to track your historical cell-site whereabouts without a warrant but that it wasn’t even a search under the Fourth Amendment because you have no reasonable expectation of privacy in such data. The court based this conclusion in large part on the outmoded and oft-derided third-party-records doctrine.

But just a few weeks ago, another federal appellate court, which covers Georgia, Alabama, and Florida, reached the opposite conclusion, ruling sensibly that, yes, people do have a reasonable expectation of privacy in their location data.

And earlier this year, the U.S. Supreme Court decided unanimously that police need a warrant to search your cell phone upon arrest. The implications of that decision continue to reverberate nationwide.

The Police Cannot Search Your Cell Phone Merely On Arrest

It is so ordered, they said. “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is … simple—get a warrant.”

As many have now heard, the U.S. Supreme Court ruled unanimously on Wednesday that police may not search the digital contents of the minicomputers and life-storage lockers we walk around with all day just because they’ve arrested you. To do that, the Court said, they have to apply for permission—that is, apply for a warrant—from a neutral magistrate (that is, a designated judicial officer) who is detached from the “often competitive enterprise” of law enforcement. Checks and balances, in other words; trust but verify, because the constable can’t check himself. The system needs a second set of eyes, as we’ve covered here before. For the post that previewed the arguments in this case, see here.

The Court acknowledged that its decision would cause delay, but it observed that privacy comes at a cost. So do many other constitutional values, one might add. Besides, police can still rely on the exception for exigent circumstances in cases of emergency, and besides that, technology has eased the process of obtaining warrants in most circumstances. But the process still matters.

U.S. Justice Department to Record Custodial Interrogations Under New Policy

Ain’t it better for everyone this way?

For years, the resistance to it has rung more and more hollow. Finally, on May 12, the Justice Department established a new policy that favors the electronic recording of all interviews taken with a suspect in custody, and which encourages agents and prosecutors to tape outside that context as well. The policy establishes a presumption that investigating agencies will electronically record statements made by people during custodial interrogations. Yes, there are exceptions, but the basic policy brings the Department in line with basic, sound practice in the modern world.

The policy was established by way of memorandum to the FBI (Federal Bureau of Investigation); the DEA (Drug Enforcement Administration); the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives); the Marshals Service (USMS); and the Bureau of Prisons (BOP). The memorandum was also forwarded to all U.S. Attorneys for circulation to line prosecutors in their offices.

The policy favors video recording in particular but prefers an audio recording to nothing. The major exceptions are for public safety and national security as well as circumstances in which recording the interview is not “reasonably practicable.” That last one may sound loosey-goosey, but it’s intended to apply to things like equipment malfunction, an unexpected need to move the interview, or an extraordinary case of multiple interviews in a limited timeframe where there aren’t enough recording devices.

The policy goes into effect July 11, 2014. For a link to the memorandum itself, go here. For a state-by-state compendium of laws on the electronic recording of custodial interrogations, see here.

 

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