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.

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.

New California Criminal Laws in 2017

Let’s get right to it.

We already covered three of them in prior posts. One was Proposition 64, which legalized recreational marijuana. Another was Proposition 57, which expanded parole eligibility for nonviolent felons and cut back on prosecuting kids as adults. A third was Assembly Bill 1909, which made it a felony for prosecutors to commit Brady violations in bad faith.

Here are five more.

Ransomware is a form of extortion. This is Senate Bill 1137. It amended the Penal Code to punish anyone who introduces ransomware into a computer system or network. It doesn’t matter whether you actually got the ransom or not; it’s a felony punishable by two, three, or four years in the county jail. See Pen. Code § 523.

New business search warrants, less drama. This is Senate Bill 1087. It amended the Evidence Code to make it easier for innocent businesses to comply with search warrants for their records. Now, if a business is not a subject of the underlying investigation, it may be able to produce its records by mail or in some other arms-length way. That’s a lot better than having agents show up to go through your stuff. See Evid. Code § 1560(f).

New motion to vacate a conviction or sentence based on immigration consequences or fresh evidence of innocence. This is Assembly Bill 813. It allows you to ask a court to throw out your case in two situations even though you’ve served out your sentence. The first is if you pleaded guilty because of a legal mistake that undermined your ability to understand the immigration consequences of your plea. The second is if you can present fresh evidence that you were innocent. See Pen. Code § 1473.7.

No more possibility of probation for sex offenses where the victim was unconscious or too intoxicated to consent. This is Assembly Bill 2888. It eliminated probation as a possible sentence for rape, sodomy, oral copulation, or sexual penetration with a foreign object if the victim was unconscious or too intoxicated to consent. It extended a rule that already applied to other, serious sex offenses. See Pen. Code § 1203.065.

No more statute of limitations for felony sex and child-molestation cases. This is Senate Bill 813. It eliminated the statute of limitations for a litany of sex crimes, which now may be prosecuted at any time. Previously, they had to be prosecuted within ten years, or if the alleged victim was under 18, before he or she turned 40. See Pen. Code § 799.

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.

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.

One Way to the Gallows

To appreciate due process, consider the story of a simple man named George Spencer who was accused, of all things, of impregnating a pig in puritan New England. His story takes place in 1642, and it’s excerpted from the book, The Case of the Piglet’s Paternity: Trials from New Haven Colony, 1639-1663, by Jon C. Blue, a Superior Court judge in Connecticut.

One day, a local farmer complained to the colony’s magistrates that a female pig he’d just bought had birthed a deformed stillborn, and what’s more, the dead piglet looked like Spencer, a former servant of the man who sold him the sow. I’m sure that alone was tough to hear for Spencer, who may not have been a looker. He had one good eye and one deformed eye, and apparently, his bad eye in particular resembled that of the piglet.

The resemblance caused such consternation that, ten days later, the magistrates questioned Spencer about “this abomination.” Not surprisingly, Spencer denied being the father, but the magistrates committed him to prison based on “strong probabilities.”

That night, one of the magistrates went to the prison, found Spencer talking with two other men, and asked him “if he had not committed that abominable filthiness with the sow.” But Spencer again denied it. The magistrate then pointedly asked whether he didn’t notice a family resemblance—ouch—and recited to him Proverbs 28:13: “He that hides his sins shall not prosper, but he that confesses and forsakes them shall find mercy.”

The magistrate pressed, asking Spencer if he regretted denying “the fact which seemed to be witnessed from heaven against him.”

Spencer then relented, said was he was sorry, and confessed to the deed.

It sealed his fate.

The following day, the magistrates returned to the prison with a throng of others. They confronted Spencer and urged him to confess his sin. He initially denied it, but when he was reminded of his prior confession, he confessed again.

Then people really got riled up. The next day, the colony’s governor joined the magistrates to question Spencer personally. The authorities asked him “how long the temptation had been upon his spirit before he committed it.” Spencer replied that “it had been upon his spirit two or three days before.”

Within a week, Spencer was put on trial. He had no time to prepare his defense or the means to do it. He had no right to a lawyer, a jury, or a presumption of innocence. The court urged him again “to give glory to God” by confessing, but Spencer wouldn’t do it. Instead, he reportedly cursed himself and desperately denied all that he’d formerly confessed.

It was too late. The court called a series of witnesses who testified to his prior confessions. Spencer answered that “the witnesses did him wrong and charged things upon him which he had not spoken,” and he again denied committing the act.

But the die was cast. The court found him guilty of the “unnatural and abominable” crime and, by the rule of Leviticus 20:15, sentenced him and the sow to death.

After the verdict, the court demanded that Spencer acknowledge “his sinful and abominable filthiness,” but Spencer replied that “he would leave it to God, adding that he had condemned himself by his former confessions.” The court declared itself “abundantly satisfied” of his guilt, and it ordered his sentence carried out.

George Spencer was hanged on April 8, 1642. Paraded before a crowd that had gathered at the gallows, he was urged to acknowledge his crime, and he again denied it. As the noose was fitted to his neck, the poor man fully and desperately confessed again, but as the mob pressed him to speak further of his sin, he fell silent, until the sentence was carried out.

Here’s to a constant march of progress.

The Unlawful Prosecution of U.S. Senator Ted Stevens

That’s the subtitle of a new book, Not Guilty, by Rob Cary, one of the lead defense lawyers in the case.

You may remember the garbage prosecution of Ted Stevens from 2008. The case received no shortage of press as it wound its way from indictment to trial to dismissal and, then, to criminal proceedings against the prosecutors who brought it.

You may not know the half of it, however, and if this can happen to him—a decorated veteran who flew 228 combat missions in World War II, a former prosecutor who served forty years in the Senate—then imagine what can happen to you.

After all, a jury voted to convict Stevens on all counts based on little more than the lying testimony of a former friend—a prominent businessman named Bill Allen—who made a dirty deal with the government to deliver the only prize bigger than himself.

How did it happen?

Allen had already been caught bribing state legislators, and he was also under investigation for sexually abusing underage girls, but all of that went away after he testified against Senator Stevens. He served less than two years of a three-year sentence on the bribery charges—when it should have been nine to eleven years and could have been twenty—and he’s never had to answer for the underage girls. He also received immunity for his adult children, more than one of whom was in hot water with him, as well as immunity for his company, which he got to sell for $350 million. The company that bought his company even negotiated a special provision in the contract: it withheld the last $70 million of the purchase price until Allen had completed his “cooperation” with the government.

Also, the jury never received evidence that Allen was lying, even though it existed in spades, because the prosecutors didn’t turn it over. Nor did the jury know that prosecutors purposely suppressed a pile of other evidence in violation of the law. Or that prosecutors selectively redacted a report that they did produce to black out the exculpatory stuff. Or that they purposely ordered 500 gigabytes of discovery produced in the most disorganized way. Or that agents simply wouldn’t write reports or record facts when it suited them.

Here’s how the special, independent prosecutor’s report summed it up in the first sentence:

“The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

In the end, Ted Stevens was cleared but only after a guilty verdict and only because of a small battalion of lawyers, investigators, and staff from a world-class law firm working around the clock to mount a multi-million-dollar defense. Oh, and a surprise whistleblower complaint by an FBI agent who’d seen enough. The government tried to suppress that, too. Here’s what Mr. Cary, the book’s author, had to say about it all:

“The fact remains … that if this can happen to a U.S. Senator in our Nation’s Capital then it can happen to any citizen anywhere in the United States. The fact that we caught them was certainly a product of experience, skill, and aggressive defense work—but it also required luck. And that’s the most frightening thing. If you need luck to ensure justice, then we don’t have much of a system at all.”

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