A 2011 documentary, Scenes of a Crime, focuses on a similar story. As we discussed in our last post, the filmmakers use footage from a defendant's nine-hour interview with police. The questioning is characterized as an interview rather than an interrogation because the officers had not read him his rights, and they said he was free to leave. The defendant confessed but recanted at trial. He maintains he is innocent.
]]> The film questions the legality of police interviewing methods. The objective, they say, is to get a confession from a suspect. They are not interested in the truth.Before he finally confessed, the officers told the defendant that they would arrest his wife if he didn't own up to the crime. In an interview included in the documentary, one of the officers tells the filmmakers, "When we're speaking to you, we're of course lying." The film also includes part of the interview that follows the "good cop/bad cop" model.
The filmmakers point the finger at the Reid interrogation technique. The method is used across the country, and its purpose is not to accuse a suspect outright but, instead, to talk to the suspect about justifications for the crime. Eventually, the theory goes, the suspect will identify with one of the scenarios -- "kids crying all day, feeling the heat about losing that job" -- and confess.
Again, though, the objective is the confession, not the truth. Two courts have upheld the guilty verdict in this case, but the filmmakers hope that people will question the system, if not the outcome, after hearing the defendant's story.
Source: ThomsonReuters News & Insight, "Film puts 'false confessions' in the spotlight," Dan Wiessner, April 13, 2012
]]>The film, Scenes of a Crime, focuses on a man who confessed to killing his child then recanted at trial. The filmmakers' position is apparently that the interrogation techniques used with the suspect are designed to get a confession, not to find out the truth.
]]> They were fortunate to find a case that included a recording of the two-day interrogation of the suspect. The suspect had no attorney with him, and police used what defense counsel characterize as "false promises, misrepresentations and threats" to elicit a confession. The court of appeals characterized the officers' actions as "permissible strategies aimed at eliciting the truth."In an interview included in the film, the defendant says he went with the police that day believing he would not be arrested. He claims the officers told him he would not need an attorney.
On the tape, the two officers tell him his baby could be saved if he confessed to causing the injuries. In fact, the doctors had already determined that the boy wouldn't make it. The cause of death was a source of contention at the trial: Prosecutors said the boy died of brain swelling consistent with head trauma; the doctor appearing for the defense believed the boy died of a blood infection.
We'll continue this in our next post.
Source: ThomsonReuters News & Insight, "Film puts 'false confessions' in the spotlight," Dan Wiessner, April 13, 2012
]]>At the center of the first trial and the hearing in December was the testimony of a North Carolina State Bureau of Investigation agent. According to the court order, the agent's testimony was "deliberately and intentionally" misleading, and, as a result, Peterson did not receive a fair trial. The judge cites the agent's description under oath of his education, his experience in forensics and the scientific basis for his assertion that Peterson was responsible for his wife's death.
]]> Expert witnesses and other SBI agents offered proof to the court in December that the agent's testimony was flawed. The court described the agent's statements as "materially misleading and deliberately false," including his testimony that he had worked on 500 cases involving bloodstains; in fact, there were only 54 such cases.The court also found that the agent had knowingly favored the prosecution with his testimony and his analysis. This wasn't the first time that had happened, either. In a pattern "repeated over the course of 20 years" the agent had exhibited a bias against criminal defendants. (This bias was one reason for the overhaul of the SBI's crime lab last year.)
Not only was the agent's bloodstain analysis biased, but it was "not scientifically valid." The agent had also failed to follow accepted practices, and, according to the order, if the judge had known any of this he wouldn't have allowed the agent to testify.
The district attorney appealed the decision after the judge's oral ruling in December. The agent was fired from the SBI last year; his testimony in several cases is in question.
Source: News & Observer, "Judge order says Michael Peterson's rights violated by SBI agent," J. Andrew Curliss, May 10, 2012
]]>DNA testing is perhaps the most reliable and certainly the most widely accepted forensic tool in use today. There is more science to DNA testing than there is to, for example, fingerprint analysis; and, there is more empirical data to back up DNA testing methods.
]]> Still, a DNA test is not infallible. The sample could be damaged or contaminated, or the comparison data may be faulty or too small a sample. The expert describes DNA test results in terms of probability -- the expert is 89 percent certain that the DNA from a cigarette is a match to the suspect's DNA.Less scientific are handwriting or questioned document examiners. Similar to a fingerprint analysis, the test is a comparison of a known handwriting sample to the questioned document. For the most part, this method is used to verify signatures rather than laundry lists or love letters, because a signature is more consistent over time than everyday handwriting is. One of the chief criticisms of questioned document analysis is that a person's handwriting naturally varies from day to day or even pen to pen.
While experts consider DNA evidence to be analytical evidence, then, they consider fingerprinting and questioned document evidence and the like to be pattern or experience evidence. With pattern evidence, the science is less rigorous. The comparisons are more subjective.
In future posts, we will discuss other types of pattern evidence as well as the courts' acceptance of forensic evidence in general.
Source: Washington Post, "How accurate is forensic analysis?" April 16, 2012
]]>But we have not talked much about the reliability of the tests or whether the tests are producing questionable evidence. Does some of the fault lie in the science, not in the people?
]]> The answer is fairly typical of attorneys, either defense or prosecution: Yes and no. Forensic science is actually both science and art. Either way, it is far from foolproof.According to fingerprints.com, fingerprints have been used to identify individuals for thousands of years, but the first documented fingerprints date back to 1858. Techniques have changed as technology has become more sophisticated, and fingerprints are almost universally accepted as evidence in criminal justice systems, especially ours.
The truth is that fingerprint analysis is fairly subjective. Analysts compare the shape, ridge count, thickness, scars and creases -- the "points" -- of the suspect's print to a print from the crime scene or from a database. The analyst reviews the measurements of the possible matches and comes up with a probability that the suspect's fingerprint matches the one from the crime scene or the database.
The analyst's perception is key here, and researchers have found that perceptions differ enough that the results can vary markedly between analysts. In another state, the crime lab's review of a sampling of fingerprint examinations turned up irregularities in almost half of them. The state ended up hiring consultants to review all of the fingerprint examinations on file and to handle the backlog -- more than 10,000 records in all.
We'll continue this in our next post.
Source: Washington Post, "How accurate is forensic analysis?" April 16, 2012
]]>The company agreed to the deal on April 19, just four months after entering a guilty plea to charges of violating the Food, Drug and Cosmetic Act. For such a complicated case, the basic charges were fairly straightforward: The government accused Merck of selling Vioxx as a misbranded drug in interstate commerce.
]]> The Food and Drug Administration's initial approval of the drug was based on its use as a pain killer. According to the court, Merck violated federal law when it promoted Vioxx as a treatment for rheumatoid arthritis before the FDA approved the drug for that purpose.The off-label use was not the only issue with Vioxx, though. After its release, Vioxx was linked to an increased risk of heart attack and stroke. Merck pulled the drug from shelves in 2004.
In November 2011, a civil court ordered the company to pay $628.4 million in damages. Plaintiffs in that case accused Merck of making false statements about the drug's safety as well as engaging in other off-label marketing activities.
Vioxx is just one high-profile case in the federal government's efforts to stop drug companies from marketing their products for off-label uses. As in this case, companies face both criminal charges and civil actions.
Source: The National Law Journal, "Judge imposes $321.6M criminal fine against Merck over Vioxx off-label marketing," Sheri Qualters, April 20, 2012
]]>The Cumberland County judge who heard the Racial Justice Act claim focused his findings on the jury, specifically with the jury selection process. He explained that, at the time of the trial in 1991, the jury selection process in capital cases systematically excluded blacks. He added that prosecutors' practices of striking blacks from the pool of potential jurors undermined the courts' and the judicial system's integrity.
]]> Prosecutors have 60 days to appeal, and the odds are in favor of the matter going to the highest court possible, according to commentators. Prosecutors have been among the most vocal opponents of the Racial Justice Act, and, again according to court-watchers, this first decision is a prime opportunity for the state's appeals courts to weigh in on the issue. Opponents of the law believe the act is a "back door" attempt to repeal the death sentence.The court in this case heard the inmate's appeal in late January and early February. The hearing lasted two and a half weeks as the inmate's counsel presented evidence of racial bias in the county and the state and, notably, in the 1991 trial. Defense counsel told the court that prosecutors struck black jurors from the jury pool much more frequently than they struck white jurors. When all was said and done, the prosecution had struck half of the African Americans from the jury pool but just 15 percent of non-blacks. The final panel was made up of nine whites, one Native American and two blacks.
Source: News & Observer, "Judge sides with inmate in Racial Justice Act ruling," Anne Blythe, April 20, 2012
]]>The man's decision to get behind the wheel after drinking was a poor one. It was a mistake that has been made by many others since that time. Although he certainly had no intent of killing the victims involved in the accident, in 1997 he became the first person ever in North Carolina to be convicted of first-degree murder in an impaired driving case.
]]> The stiff sentence meant he would spend life in prison without parole. Some felt as if the sentence would be another loss of life in what was already a devastating tragedy for everyone involved. More importantly, the verdict brought up concerns that prosecutors would have the ability to charge anyone with first-degree murder in future fatal traffic accidents.The man who was charged with the crime felt a great deal of remorse for the damage he had created. He also felt as if he was being used as a guinea pig for the new law.
In 2000, the N.C. Supreme Court overturned the conviction, ruling that prosecutors were wrong to pursue first-degree murder in a DWI case. A new trial was set for 2003, and the North Carolina man pleaded guilty to second-degree murder. After spending nearly 15 years behind bars, the man was released last week.
This is a case that made national headlines as people pushed for tougher laws on drunken driving and others questioned if the punishment fit the crime. The debate will probably continue but for the North Carolina man who is finally free, he has already had plenty of time to sit and think about it.
Source: Winston-Salem Journal, "Figure in landmark impaired -driving case leaves prison today," Michael Hewlett, April 11, 2012
]]>The conflict began in September 2011 when the son traveled to the police precinct in order to retrieve a number of firearms that were taken by police during a domestic dispute. According to the son, the department refused to return two rifles and other equipment. Police claimed he became angry and raised his voice to the evidence room clerk. As the son was driving out, he waved his middle finger out the window of his SUV.
]]> The next incident occurred only an hour later, when a SWAT team stormed the parents' property, with guns in hand and wearing armor, and tossed a flash bomb into the yard. When the family came to the front yard, officers ordered them to the ground and, according to the family, pointed guns at their heads for a full 48 minutes. Finally, the police arrested the son.When the parents went to the precinct to complain about the SWAT team, they saw a poster of their son that named him as a dangerous and armed person -- even though the two charges, both misdemeanors, had been dismissed. The parents filed additional complaints about the poster.
A police department spokesperson stated that the poster was up because of the son's alleged threat back in September, and because he is again in possession of weapons. The son claims he uses the guns to protect his business.
His father said the idea of his son waving a gun out the window of his car in front of a police station was absurd. "That's just crazy," he said. "Unarmed black men get shot in this country."
Source: News & Observer, "Family claims Raleigh police, SWAT team are out of control," Thomasi McDonald, April 3, 2012
]]>It was a bureaucratic error that ultimately led to the U.S. Supreme Court decision we have been discussing. The plaintiff was arrested for not paying a fine. He actually had paid the fine, seven years earlier, but a computer error meant that the bench warrant remained in effect. The plaintiff had a letter with him to that effect, but the officer ignored it.
]]> The plaintiff ended up in jail, where he was strip searched before being put in with the general population. He was transferred a few days later, and he was strip searched again. After seven days in jail for a violation, not a crime, he was released.His complaint alleged that the corrections department had violated his Fourth Amendment rights by conducting an unreasonable search. The majority found for the jails. The dissenting opinion, however, said that jailers should have a reasonable suspicion that the detainee is hiding something before conducting a strip search. And, while North Carolina's attorney general joined others in supporting the jails, several states as well as associations of corrections officers agreed with the dissent.
The question of the search, then, is settled, but the plaintiff may yet pursue other avenues of redress. Going back to the events that triggered all of this, he may question the propriety of the arrest. The issue was not included in this case.
The plaintiff is African-American.
Sources:
National Public Radio, "Supreme Court Upholds Invasive Strip Searches," Associated Press, April 2, 2012
Florence v. Board of Chosen Freeholders of the County of Burlington, --- S.Ct. ----, 2012 WL 1069092 (U.S.), April 2012, via Westlaw
]]>There is one condition: The facility must conduct these searches routinely, as a matter of policy. If the plaintiff can prove that the policy is not a necessary, justified response to jail security concerns, the court would consider the search unreasonable. The majority seemed to establish a presumption that correctional officials have good reason to strip search every detainee, regardless of the severity of the crime: Plaintiffs must provide substantial evidence to support their arguments.
]]> Four justices sharply disagreed. The dissenting opinion pointed out that inmates in the jails in question went through additional security measures before the strip search. There was a pat-down search; detainees passed through a metal detector and showered with delousing agents; during the showers, officers searched the detainees' clothing.The dissent concluded that the close visual inspection was improper and a "serious invasion" of privacy for detainees held for minor offenses -- the opinion included examples of strip searches conducted on detainees held for crimes like biking with an inaudible bell and walking a dog without a leash.
We'll finish up in our next post.
Sources:
National Public Radio, "Supreme Court Upholds Invasive Strip Searches," Associated Press, April 2, 2012
Florence v. Board of Chosen Freeholders of the County of Burlington, --- S.Ct. ----, 2012 WL 1069092 (U.S.), April 2012, via Westlaw
]]>Again, the plaintiff in the case was arrested for failure to pay a fine -- a violation, not a crime in his state -- and spent a week in jail while the matter was pending. He was subjected to a "close visual inspection" (the court's words) while undressed before he was put in jail immediately following his arrest and again when he was transferred.
]]> The majority said the searches did not violate the plaintiff's Fourth Amendment rights because the searches served an important purpose: the health and safety of the jail's population and personnel. The opinion went on to explain that the searches were justified for three reasons: detecting lice and contagious infections, looking for evidence of gang affiliation (tattoos, for example) and looking for contraband the detainee may be attempting to smuggle into the facility.As for the question of the severity of the crime, the court noted that Timothy McVeigh, the Oklahoma City bomber, was initially pulled over for driving without a license plate. "The most devious and dangerous criminals" can come to jails on the most minor of offenses, the majority warned.
In a concurring opinion, Chief Justice John Roberts and Justice Samuel Alito suggested that the decision left room for an exception. They said that the ultimate destination of the detainee could determine the need for a strip search: In the general population, the search would be a must; set apart, however, the search would not be necessary.
We'll discuss the diseenting opinion in our next post.
Sources:
National Public Radio, "Supreme Court Upholds Invasive Strip Searches," Associated Press, April 2, 2012
Florence v. Board of Chosen Freeholders of the County of Burlington, --- S.Ct. ----, 2012 WL 1069092 (U.S.), April 2012, via Westlaw
]]>The majority's opinion characterizes the issue in the case as "whether every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed." The justices' argument hinged on where the detainee would be held: apart from or in the midst of the general jail population?
]]> We discussed the case in October, when we noted that North Carolina and other states had filed briefs with the court supporting the jails. Their argument was that the search was constitutional because, first, there was no physical contact between the detainee and the officers, and, second, the purpose of the search was to protect "the health and safety of the detainee and other inmates."The holding goes down a slightly different avenue. The majority said that "courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security." So, if the policy is to subject all detainees entering a jail to this kind of search in order to protect the health and safety of both inmates and jail personnel, it is up to the plaintiff to show that conditions in the jail render the policy unnecessary or unjustified.
There is more to it than this, of course, and we'll get into that in our next post.
Sources:
National Public Radio, "Supreme Court Upholds Invasive Strip Searches," Associated Press, April 2, 2012
Florence v. Board of Chosen Freeholders of the County of Burlington, --- S.Ct. ----, 2012 WL 1069092 (U.S.), April 2012, via Westlaw
]]>State self-defense laws grew out of the "castle doctrine," the legal right to use force in response to a threat of bodily harm. North Carolina expanded its castle doctrine law last year to protect people from criminal and civil penalties if they use guns to defend their homes, cars and workplaces. North Carolina also added a number of public places, including state parks and rest areas, where a person (with a permit) may "conceal and carry" a firearm.
]]> Similar legislation throughout the region has come under attack since Martin was killed. While most gun rights advocates believe that use of force is justified in situations where people feel threatened, they also acknowledge that the law carries risks.In North Carolina, drafters say that the law has built-in safeguards that would prevent a case like Martin's. For example, the law will not shield someone who provokes the use of force against himself. The law does not protect a shooter if the potential assailant has "discontinued all efforts to unlawfully enter the home, motor vehicle, or workplace." In Martin's case, the shooter reportedly pursued the alleged aggressor.
While the Department of Justice and the FBI investigate the Martin case, debate continues in state houses and at dinner tables around the country. Included in those discussions is the question of whether the crime was racially motivated. The victim's parents, civil rights activists and the community are speaking out in the hope that the shooter is charged and prosecuted. Supporters of the stand-your-ground laws believe that deadly force is justified in specific instances, but they also believe that people who act outside of the law should be prosecuted.
Source: Charlotte Observer, "Trayvon Martin case puts N.C. self-defense law in spotlight," Gary L. Wright, March 24, 2012
]]>The penalty is a $25 fine, but police must pull drivers over for another suspected violation before charging them under the cellphone ordinance. And, drivers must give police permission to check their phones to see if they were in fact on a call. If a driver refuses, police will need a search warrant before they can proceed.
]]> Some may support the ban in theory but have little faith that the ban will change anything. They have enough trouble enforcing the ban for drivers age 18 and under, said one Chapel Hill official. Police have not written a single citation under that law since 2010.Plus, the ordinance includes exceptions for emergency calls, calls to a health provider and calls to a family member. Even if an officer can prove that the driver was on the phone, chances are slim that drivers will admit to talking to someone outside of family, physician or emergency personnel, another official said.
While police say they will enforce the new law, they admit that they don't see themselves writing a lot of tickets. Perhaps the most positive impact will be an increased awareness of cellphone use while driving. Everything from college campuses to tourist brochures will include information about the ban; the more the word is out, the more likely honest people are not to violate the ordinance.
Opponents see a host of problems on the near horizon. First, some question the authority of the city to pass such a ban. Second, opponents are not shy about reminding town leadership that research has not shown that cellphone bans actually reduce the number of accidents.
The council took the first step by adopting the ordinance. The courts will hear the challenges in due course.
Source: News & Observer, "Phone ban presents challenge for police," Katelyn Ferral, April 1, 2012
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