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.

Throwing Pitches in a Civil Case

Make that Pitchess with an extra s—as in Pitchess motions. In California, they’re how you ask a court to order the production of a police officer’s personnel file in litigation.

We’ve written about them in the context of criminal cases, but the procedure’s the same in civil cases, as a court of appeal recently explained in an employment case.

A retired police officer had sued his police department for unlawful retaliation. He said the trouble started after he had served 18 years on the force, when he blew the whistle on two officers for filing false reports. He was branded a snitch and ostracized. Even his calls for help in the field would go ignored. He transferred divisions and applied for 14 different promotions but was denied each time in favor of someone less qualified. So he sued.

To prove his case, he moved to obtain the personnel files of the officers who were promoted ahead of him. He argued their records were material to his case because the department claimed to have promoted the more-qualified candidates.

The trial court, however, denied his motion because the records belonged to third parties who had nothing to do with the alleged retaliation. That was the department’s argument, anyway, and the court accepted it.

But that’s not the law.

Because the records were material to the plaintiff’s case, the agency had to produce them for the court to decide what was relevant and discoverable. It didn’t matter that it was a civil case, not a criminal one. It didn’t matter that the records pertained to people who were innocent of wrongdoing. What mattered is that the records were material to the plaintiff’s case, and there was no denying that.

Although the trial court could take a number of steps to balance the rights of third parties, it couldn’t refuse to review the records and test their relevance.

So the court of appeal reversed and sent the case back.

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.

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.”

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 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.

California Supreme Court Revisits the Law of Access to Police Personnel Files

Police officers are human beings who are capable of making mistakes or behaving badly, just like anyone else, and if they testify in a criminal case, their credibility is always at issue, just like any other witness.

So what do you do if you believe that an officer previously lied, behaved violently, used excessive force, or otherwise acted in ways that undermine his or her credibility in your case, and the information may be documented in a personnel file?

Since the mid-1970s, the law in California has been that you can make a motion in court for disclosure of that evidence. See Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (holding that a defendant can compel the discovery of evidence in an officer’s personnel file that’s relevant to his or her defense).

Since 1978, however, these Pitchess motions, as they’re still called, must follow procedures that the Legislature enacted to balance the privacy rights of police officers. See Pen. Code §§ 832.7 & 832.8; Evid. Code §§ 1043-47. Under these statutes, you must make your motion in writing and serve it on the officer’s agency or department. Your motion must describe the information you seek and demonstrate good cause for its disclosure by explaining its relevance to your case. If your motion does that, the agency must bring all “potentially relevant” records to court so that the judge can review them in chambers out of everyone’s presence except the records custodian and the officer in question. The judge then decides whether there’s any relevant evidence that should be disclosed to you.

Last week, the Supreme Court faced two questions that weighed these statutory procedures against the government’s constitutional duty to turn over evidence that’s favorable to the accused. See Brady v. Maryland (1963) 373 U.S. 83.

The first question was whether prosecutors could inspect police personnel files on demand because of their Brady obligations or whether they had to follow the same statutory procedures as defendants. The question arose because the San Francisco Police Department had created a policy by which it would apprise the district attorney’s office of potential Brady evidence on a rolling basis according to its own procedures; then, if that officer’s name later came up in a case, the district attorney could use the statutory procedure to get the evidence from the court.

In the underlying criminal case, the police department advised the district attorney of two officers whose files might contain exculpatory evidence, but after prosecutors filed a Pitchess motion, the trial court ruled that they could and should inspect the files on their own before deciding whether to file the motion. So did the court of appeal.

The Supreme Court, however, held that prosecutors couldn’t bypass the statutory procedure because they didn’t represent the police department or its personnel in general (or in theory, one might add) and thus had no greater access to its files than the defense (at least not under the statutes, one might add).

But what about Brady? That was the second question. What were prosecutors required to do with the information they had learned from the police department?

The Court held that prosecutors met their constitutional duty simply by telling the defense what the police department told them. They didn’t need to make a Pitchess motion to satisfy Brady because the defense could make one itself.

One suspects the whole kerfuffle was caused by frustration in the court system over who would do the work, given how we allocate resources. If so, the case is another argument to better fund our cash-strapped courts.

In a free society, it turns out, the rule of law costs money.

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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