New California Criminal Laws: Part Deux

To conclude our series on new criminal laws, here are two more notable ones.

You have more protection against abusive asset forfeiture. This is Senate Bill 443. It amended the Health and Safety Code to curb law enforcement’s ability to take and keep your property without convicting you of a crime. For more background see here.

Under the new law, the authorities must convict you of a crime in order to take your cash if it’s less than $40,000. The prior threshold was $25,000. As before, they also must prove up their forfeiture case against the money beyond a reasonable doubt. For cash of $40,000 or more, they still don’t need to convict you of a crime, but as before, they must prove their forfeiture case by clear and convincing evidence.

Furthermore, the authorities may no longer bypass state law by asking federal agents to adopt the forfeiture under federal law. Even in cases of a joint task force or investigation, they may not share in the proceeds of a federal forfeiture if state law would’ve required a conviction but there wasn’t one.

You’ve got a much better shot at getting a new trial based on newly-discovered evidence. This is Senate Bill 1134. It amended the Penal Code to include a new standard for writs of habeas corpus based on new evidence. Before, you would only get a new trial if your new evidence pointed “unerringly to innocence” and completely undermined the state’s case. That was a nearly impossible standard to meet.

Now, you can get a new trial if you present new evidence that’s “credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial.” Much better.

Lies, Damned Lies, and Sex Crimes

If you thought the case from last week was bad, here’s another one that’s worse.

This time, the supposed victim hasn’t stepped forward to admit she lied, so the man she accused of child molestation sits in prison, as he has for seventeen years, and the system seems powerless to stop it.

What happened? The jury never saw medical records in which the girl’s mom told a hospital therapist that her troubled daughter was a “pathological liar and she lives her lies.” The jury never heard about this and other details at trial because the prosecutor didn’t turn over the records. He told the judge there wasn’t anything in there to worry about.

How did it happen? The man was divorced and estranged from the mom, but he’d been in the girl’s life for ten years before that. The girl first reported the abuse three years after the divorce but only after her mom found out that she was dating a 27-year-old heroin-dealing parolee, and they got into a big fight about it. The mom reported the parolee and got him locked up. The girl flew into a rage and attempted suicide several times. It was in that context that she accused him.

But the girl’s story changed throughout the case. Initially, she said that he had touched her inappropriately but denied oral sex or intercourse of any kind. Then she claimed that he had raped her. By the time of trial, her testimony was that her stepfather had routinely raped her for years. Then, after he was convicted, she submitted a victim-impact statement in which she claimed, for the first time, that he had even shared her sexually with others.

The judge was not impressed. She had presided over the trial, and she thought the girl was lying. She asked to see her medical records, but the prosecutor refused. She threatened to throw out his conviction unless she saw the records, and he gave in.

The judge took one look at the girl’s medical records and immediately ordered a new trial. Here’s her written order. You should read it for yourself.

But the prosecutor’s office appealed the judge’s order. They got the conviction reinstated and the case reassigned to another judge, who sentenced the man to seventy years.

The man remains in prison today, serving out a death sentence. His case has cut a tortured path through state and federal appeals.

Someone should intercede.

California Prosecutor to Pursue Perjury Cases More Aggressively

Speaking of district attorneys’ doing creative things, here’s another one.

The district attorney from Lake County, California has created a perjury-investigations unit to prosecute what he views as rampant, unchecked perjury in the courtroom. And he’s not wrong about that. Just ask a divorce lawyer about the vicious lies that people will tell in court when it suits them. It’s a real problem. It harms people and undermines the rule of law.

In fact, one of the catalysts for the move was the case of a man who spent eighteen years in prison for a child molestation he didn’t commit. We know that now because the child whom he supposedly molested, the daughter of an ex-girlfriend, stepped forward to say it never happened. The now-30-year-old woman was ten years old at the time, and she says her mom made her lie about the man because he’d just won custody of their two-year-old girl.

The district attorney says his office will pursue cases where there is strong evidence of a material lie. It’s a smaller office, but it’s a start. It may be the first such unit in the country, and they’ve already filed their first case.

Says the district attorney, “There’s no way you’re going to completely eliminate perjury. I’m not a dreamer. But we do hope to deter a lot of people from blatantly lying.”

Prosecutors Form Conviction-Review Units

More and more, district attorneys are creating specialized, dedicated teams of prosecutors to review viable claims of wrongful conviction in their counties.

They’re called conviction-review units or conviction-integrity units, and it’s a good thing.

They’ve only been around for ten or fifteen years, but the concept is catching on. According to this April 2016 study by the University of Pennsylvania Law School, there are 27 of them across American counties as of December 2015. That may seem like a small fraction of the overall number, but they include many of our most populous counties, accounting for nearly a hundred million people. From west to east, they include counties like Los Angeles (California), San Diego (California), Clark (Nevada), Dallas (Texas), Harris (Texas), Cook (Illinois), Wayne (Michigan), Philadelphia (Pennsylvania), New York (New York), Kings (New York), Nassau (New York), and Washington (District of Columbia). More than half have been created in the last two or three years.

California has conviction-review units in Los Angeles, San Diego, Ventura, Santa Clara, and Yolo counties. When we wrote about the phenomenon two years ago, we thought Dallas was the first county to do it, in 2007, but it turns out Santa Clara got started in 2004, and San Diego first experimented with the idea in 2000. They’re all winners, though. Los Angeles created its unit last year, and San Diego launched its permanent unit this spring.

The good ones will be independent and transparent.

May we see more of them over time.

Something Wicked This Way Comes

I recently watched the documentary, Making A Murderer, and if you haven’t yet, you should. No, it’s not an indictment of all law enforcement. It’s an object lesson in why we should be deeply skeptical of power and the people who lord it over our lives. And how easy it can be for them to get you, too, especially once they’ve called you a murderer.

So go ahead and watch it if you haven’t already, and watch it again if you have. Then form your own opinion. Mine is that something stinks to high heaven, and there’s probable cause to believe that the real criminals are getting away with it. Here’s a little bit of the why.

It was 2005, and Steven Avery had filed a lawsuit.

His lawsuit had named the former county sheriff and district attorney as defendants, and those men had reason to be worried.

Some of their lead deputies had royally stepped in it by the way they had handled Avery’s 1985 rape case, which is why Avery had sued them in the first place.

The deputies had purposely withheld material evidence in the rape case when they knew or should’ve known that another suspect, Gregory Allen, was the real rapist. They suppressed that evidence even after new DNA testing pointed to an unknown third party. They hid that evidence even as they watched Avery desperately plead his case on appeal.

Then, in 2003, Avery was exonerated when advancements in DNA testing were able to conclusively identify Allen as the rapist. So Avery was cleared, and he filed a $36 million lawsuit for the eighteen years he spent in prison at the hands of their misconduct. That was $1 million for each year in prison plus $18 million in deterrent, punitive damages.

His lawsuit was getting traction in the second half of 2005, and the defendants had reason to be worried. Some of their deputies had already been deposed on September 22, October 11, October 13, and October 26, and those depositions had not gone well. The evidence was embarrassing to all involved, and it was leading upstream.

The sheriff’s and district attorney’s own depositions were scheduled for November 10 and November 15, respectively, and the county’s insurance company had taken the position that it would deny any coverage because the case involved intentional misconduct.

That meant the defendants faced the prospect of a massive personal judgment if they were found liable, along with other civil and criminal consequences.

Then, on November 3, a woman went missing.

And the rest you can judge for yourself.

May the chickens come home to roost.

A House of Cards

That’s how the U.S. Supreme Court described the evidence in a murder case that it reversed last week because the prosecution had wrongly concealed other important evidence from the defense and jury.

Factor in that other evidence, the Court held, and the house begins to crumble.

How so?

There was no physical evidence tying the defendant to the murder, only the words of two inmates who were serving time for their own, unrelated cases.

The first inmate, Scott, was the one who first contacted the authorities to implicate the defendant nearly two years after the murder. His story had problems to begin with, but he subsequently gave five more statements, and the story would change each time. By the time he testified as the star witness at trial, his account bore little resemblance to the original version. Notably, he testified that another guy, Hutchinson, had run into the street, flagged down the victim’s car, pulled the victim from his car, and participated in the murder.

What the jury never heard was that Scott had a personal beef with the defendant that Scott had told another inmate about. That statement wasn’t produced at or before trial. Nor did the jury hear from another inmate who said Scott tried to coach him to lie about the defendant. That statement wasn’t produced, either. Nor did the jury get to see Hutchinson’s medical records, which would’ve shown that the man had undergone major knee surgery nine days before the muder. The surgery was to repair a ruptured patellar tendon, which meant that, nine days later, he barely would’ve been able to bend his knee. The prosecution had these medical records before trial, but they didn’t turn them over.

The other inmate, Brown, backed up Scott’s story at trial. Although he’d previously given an inconsistent statement to police, he said he decided to testify against the defendant because his sister knew the victim’s sister. He claimed his decision had nothing to do with helping himself. The prosecutor vouched for that in opening statements and closing arguments, saying there was no deal on the table and that Brown hadn’t asked for anything.

What the jury didn’t hear was that, in fact, Brown had twice sought a deal to reduce his sentence in exchange for testifying against the defendant, and the police had told him they would “talk to the D.A. if he told the truth.” The prosecution had those police notes in their possession, but they didn’t turn them over.

On appeal, the state courts ruled that, even if the defendant’s constitutional rights were violated, the errors were harmless.

But the Supreme Court was having none of that, and it summarily reversed the conviction.

The Price of Freedom is Eternal Vigilance

Antonin Scalia didn’t coin that expression, but the late Supreme Court Justice, who died one month ago, once delivered a speech that touched on a similarly uncomfortable notion.

Nearly two years to the day before his death, Scalia was speaking to a group of law students at the University of Hawaii, and he was asked about the Supreme Court’s infamous Korematsu decision from 1944. That’s the case in which the Court approved, by a 6-3 vote, the constitutionality of an executive order that forced the internment of all persons of Japanese descent, including American citizens.

Although Scalia unequivocally called the Court’s decision wrong, he also imparted the following admonition to his audience: “But you are kidding yourself if you think the same thing will not happen again.”

To explain himself, he referred to an older, Latin expression: “Inter arma enim silent leges … In times of war, the laws fall silent.”

And he went on to say, “That’s what was going on—the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again—in time of war. It’s no justification but it is the reality.”

I wouldn’t be surprised, either, and I hope I’m wrong about that, but we’d be wrong to presume that it will never happen again because we’re so much better than we were or because we’ve evolved beyond our basic fears and instincts.

Sometimes, in fact, it seems we scare more easily than ever.

Whether or not you agree with Scalia on other points—and there’s plenty of grist for debate—the foregoing remarks reminded me that the price of freedom—and a better tomorrow—is eternal vigilance by this generation and every one to follow.

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.

It’s All Just Harmless Error, Except When It’s Not

We say you’re not guaranteed a flawless trial, only a fair one, so even when there’s error, we don’t reverse a conviction if the error is deemed to be harmless overall.

But a federal court of appeals recently reversed a state murder conviction because of a legal error that several courts before it had deemed harmless. The case takes an interesting look at the weight and power of jury instructions in a murder trial, and it begins with a shooting outside a Las Vegas hotel, with a guy who’s convicted of second-degree murder and sentenced to life in prison.

The guy never denied the shooting but argued it was in self-defense. Self-defense, of course, is a complete defense if you can “perfect” the defense, meaning you can establish not just that you sincerely believed that using force was necessary but that your belief was reasonable. Otherwise, “imperfect” self-defense, where your honest belief is judged to be unreasonable, is not a complete defense, meaning you don’t just walk. In some jurisdictions, though, it’s enough to reduce murder to manslaughter, because an honest belief in the need to use force, even if later judged unreasonable, means you didn’t act with malice, so you can’t be guilty of murder (the classic definition of which is an unlawful killing with malice aforethought). But other jurisdictions don’t lean that way, including Nevada.

In this case, the jury convicted the guy of second-degree murder, so they don’t appear to have accepted a complete self-defense theory, but they could’ve convicted him of manslaughter, and they were given the option to do so. In fact, they received instructions on each of first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter. Voluntary manslaughter, they were told, was the unlawful killing of another without malice but rather upon a sudden quarrel or heat of passion caused by sufficient provocation. They were told that sufficient provocation could include an attempt by the person killed to commit a serious personal injury on the person who did the killing.

The problem was that the jury instruction on self-defense confused the interplay between murder and manslaughter. They told the jury that an honest but reasonable belief in the need for self-defense did not negate malice and did not reduce murder to manslaughter. That was flat wrong. An honest and reasonable belief in the need for self-defense always negates malice. The court had meant to say “unreasonable,” not “reasonable,” but it was a clerical mistake, and no one ever caught it. The court even corrected another typo in the same instruction and advised the jury about it, which may have reinforced to the jury that the rest of the instruction was correct.

On appeal, the Nevada Supreme Court agreed that the instruction was wrong, but it held that the error was harmless given the totality of the jury instructions and the evidence admitted at trial. The defendant filed habeas corpus petitions in the state courts as well as in federal district court, but they were all denied.

Finally, on appeal from the district court’s denial, the court of appeals ruled that the error was not harmless, and it reversed. The court held that the error had a “substantial and injurious effect or influence” on the jury’s verdict because it lowered the state’s burden to prove murder by confusing the kind of provocation that could reduce murder to manslaughter.

So was the error harmless, and was it murder or manslaughter? You can decide for yourself. Most of the facts of the case were not in dispute, including the following.

The defendant had met up with his girlfriend and two younger brothers at a nightclub in Las Vegas. When his girlfriend tried to leave, she encountered the alleged victim, who was a neighborhood rival, standing next to her car with his friends. She asked them to move so that she could leave, but they wouldn’t get out of the way. As she tried to back her car out, she hit the alleged victim in the arm, and the guy got upset, kicked her car, and screamed obscenities at her. When her boyfriend (the defendant) came out of the club, the other guy began yelling at him, too, and in the moments that followed, the other guy pulled a box cutter from his pocket. He may have been fixing to use it, too, but one of the club’s security officers grabbed him by the arm and restrained him, and there was no further incident at the club.

The defendant and his brothers left the club and drove to a casino, but the other guy and his friends followed them there, making threatening gestures at them along the way. When the defendant’s crew pulled into the parking lot, so did the other crew. Apparently, the ensuing commotion was loud enough that the casino’s security wouldn’t allow either group inside, so things went from bad to worse outside. A fistfight broke out. Then someone in the other guy’s group began throwing rocks at the defendant’s group. Then the other guy brandished his box cutter again and threatened to cut the defendant’s face off.

Amid the commotion, at some point, the alleged victim went back to his car and got in from the passenger side, without closing the door. At that point, the defendant went to his own car, retrieved a gun, ran to the other guy’s car, and shot him four times.

At trial, witnesses testified to a history of confrontation between the two men in which the alleged victim was always the aggressor. Even one of the alleged victim’s own friends testified that his friend was always the aggressor; that the defendant was frightened that night; and that the defendant tried to de-escalate the situation. A psychiatrist who examined the defendant testified to a reasonable degree of medical probability that the defendant honestly believed he and his family were in danger of being killed. Although some witnesses testified that the altercation was over by the time the alleged victim went to his car, others did not, and one testified that he heard the alleged victim say just before going to his car, “You can dodge this knife, but you can’t dodge these bullets.”

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