Private Financing of Public Prosecutions-Part II

Where does one draw the line? How much private assistance can be rendered by purported victims to local prosecutors in a criminal case? Investigation? Assistance during the execution of a search warrant? Hiring experts to do analyses that will be used in court? Will only wealthy "victims" have their cases handled in an adequate manner by public authorities? Do we use private resources to make cases that would otherwise never be solved? The public policy issues are complex and pose serious questions for the future.

In Massachusetts, the legislature passed a statute which basically, authorized the creation of an insurance fraud prosecution unit in the Attorney General's office. It would be funded by a special assessment on two insurance industry trade groups and the insurance industry will also create a fraud bureau to lend assistance to the state prosecutors. The constitutionality of the statute was challenged in Commonwealth v. Ellis. Unfortunately, the court denied the defendant's challenge in large part due to the fact, that the statute in question left the ultimate decision to prosecute in the hands of the public prosecutors. Additionally, the fact that this was a legislative creation subject to public input and review saved the statue and this form of private industry financing.

In California, the software developer, Borland International, suspected that a former employee had been conveying internal information to a competitor. The Santa Cruz County DA's office obtained a search warrant for the competitor's computers. Borland hired one consultant and the DA's office hired another. Borland paid for both consultants. Additionally, Borland paid for a private service to transcribe audio taped interviews of Borland employees. The trial court's decided to disqualify the entire DA's office from prosecuting the case due to Borland's various funding of the prosecution efforts. On appeal, the question framed was "whether a crime victim's payment of substantial investigative expenses already incurred by the public prosecutor creates a disabling conflict of interest for the prosecutor..." Under a unique provision of the California code, the California Supreme Court ruled yes. See People v. Eubanks, 14 Cal.4th 580 (1997).

Bottom line: With prosecutor positions being limited or cut, this issue will continue to arise and rear its ugly head. Know the law and arguments that need to made. Adios until after Thanksgiving

Wisconsin Innocence Project Moves Forward

Two major events have recently happened at the University of Wisconsin's Law School Innocence Project. While most coverage has concerned the recent financial grant, this past summer, the directors, Keith Findley and John Pray reached out to the community and formed a Board of Advisories. The group includes former and present prosecutors as well as a few well known defense lawyers. The press release is reprinted here:

Veteran Prosecutors, Police, and Defense Attorneys to Join

Wisconsin Innocence Project’s New Advisory Board

New Board Created to Help Steer the Work of the Wisconsin Innocence Project

In Advocating for Wrongly Convicted Individuals and Recommending Reforms to

Improve the Reliability of the Criminal Justice System

CONTACT: Keith Findley, 608-262-4763, 608-335-4544, kafindle@wisc.edu

(Madison, July 12, 2011) – The Wisconsin Innocence Project, a legal education and advocacy project at the University of Wisconsin Law School’s Frank J. Remington Center, announced today the formation of a new Advisory Board. The new Board will include such prominent and respected experts as retired Milwaukee County District Attorney E. Michael McCann and retired Assistant District Attorney Jon Reddin, Retired Dane County prosecutors Judy Schwaemle and John Norsetter, Manitowoc County Assistant District Attorney Michael Griesbach, Port Washington Police Chief Richard Thomas, Madison Police Department Captain Vic Wahl, Marquette Law Professor Daniel Blinka, State Public Defender Kelli Thompson, and attorneys Stephen Hurley, Dean Strang, Stephen Glynn, Stephen Meyer, Gordon “Chip” Davenport, III, James Friedman, and Rebecca Mason, and former client and exoneree (and now attorney) Christopher Ochoa. Additional members may yet join the Board as well.

The Board is being created to advise the Wisconsin Innocence Project on case selection criteria, evaluating difficult cases, strengthening advocacy in individual meritorious cases, and evaluating and promoting policy initiatives to improve the criminal justice system.

University of Wisconsin Clinical Law Professor and Wisconsin Innocence Project Co-Director Keith Findley explained, “The work we do advocating for the wrongly convicted can have profound impact on the lives of the wrongly convicted, victims of crime, and the functioning of the criminal justice system. To help us chart an effective and appropriate course, we thought it best to bring in experienced and respected actors from across the criminal justice system to ensure full and balanced consideration of the issues we confront.”

Private Financing of Public Prosecutions-Part I

In my last post I mentioned the recent Wisconsin State Journal article entitled "Fire Investigations face scrutiny." It is my belief that with the fiscal attitude of the legislature and executive branch, the criminal justice system will remain grossly underfunded, including not only counsel for the accused but also prosecutorial agencies. This will put pressure on District Attorneys and law enforcement to rely on private funding for investigations and prosecutions. This reliance raises a host of not only public policy concerns but the fundamental due process rights of defendants.

The general issue of the private financing of public prosecutions as against public policy was set forth as early as 1928 in the State of Wisconsin. In State v. Peterson, 195 Wis. 351, 218 N.W. 367, the Supreme Court stated: "In the prosecution of criminal actions, the district attorney prosecutes for public wrongs, not private wrongs, and such prosecution should be by a public officer, not a private party. This court has from earlier days given full effect to our statutory scheme, and has declared it the public policy of the state." Id. at 369.

Unfortunately in terms of the scope of this decision, the case involved the egregious facts of an attorney being hired by the complaining witness and actively assisting the prosecution during trial. Second, the court's ruling was dependent on the statutes which as we know can be changed without much notice or public input. Is there a constitutional barrier to this type of activity? How far can a private party go in assisting the prosecution? Initial investigation by the internal security of the company (think employee theft by store clerk)? Hiring of experts to assist the prosecution (think insurance companies in arson cases)? Payment of experts to testify at trial (same)? As one can see the degree of influence and financial assistance by the private party is one of degree and when and where do things cross the line?

In constitutional terms, due process mandates that the public prosecutor be impartial. In the landmark case of Berger v. United States, 295 U.S. 78, 88 (1935), the Court observe that , "the United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all." This impartiality requirement has been part of the touchstone along with public policy concerns in cases decided across the country raising this issue. My next entry will discuss two of the more prominent cases. Until then, enjoy your summer.

Crawford to Melendez-Diaz to Bullcoming to Williams v. Illinois

While I wanted to write on the issue of the private financing of public prosecutions to tie in with the recent article ("Fire investigations face scrutiny") in the Wisconsin State Journal about one of my recent cases, State v. Bergeron; other matters have slowed my efforts. Therefore, I am submitting a brief note about the latest going on with the Supremes and Crawford and its progeny.

My originals suspicions about the dissent in Melendez-Diaz testing the two new members (Sotomayer and Kagan) in Bullcoming may prove prescient. It is becoming apparent, no surprise really, that Sotomayer and Kagan are not the same as the two justices they replaced: Stevens and Souter. The scenario presented by Sotomayer in her concurrence in Bullcoming is close to the issue presented in Williams v. Illinois. It will be interesting to see if the slim majority holds when dealing with the results of lab testing and experts testifying who did not do the actual lab analysis.

The question as framed by the Court:

Whether a state rule of evidence allowing an expert witness to testify about the results

of DNA testing performed by non-testifying analysts, where the defendant has no

opportunity to confront the actual analysts, violates the Confrontation Clause.

JEFF FISHER WINS ANOTHER ONE-6th Amendment right of confrontation survives Bullcoming

Previously, I wrote about the pending case of Bullcoming v. New Mexico, and its possible implications. (see post of March 21, 2011 ). In a 5-4 decision, with a concurrence by J. Sotomayer (advocating the "limited reach" of the opinion), the Court ruled for the defense. The ABA Criminal Justice section summary was:

BULLCOMING v. NEW MEXICO, No. 09–10876 (June 23, 2011)

In a 5-4 opinion by Justice Ginsburg, the Supreme Court held that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported. Additionally, the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

In August 2008, petitioner Donald Bullcoming was arrested and charged with driving while intoxicated after he rear-ended a pick-up truck in Farmington, New Mexico. During the investigation for his DWI, Mr. Bullcoming refused to take a breathe test, and therefore police obtained a warrant allowing them to draw blood. Mr. Bullcoming’s blood sample was then sent to New Mexico’s scientific laboratory where analyst Curtis Caylor administered various tests and determined that the blood alcohol content was .21. Mr. Calyor then filled out the necessary forensic report and signed the certificate of analyst; affirming that he had conducted the tests and his statements were true.

On the day of the trial, the prosecution announced that Mr. Caylor would be unavailable to testify because he was on unpaid leave. Despite objections from Mr. Bullcoming’s counsel arguing that under the Confrontation Clause he had the right as the accused to confront the witness against him, the Trial Court allowed for the state to admit Mr. Caylor’s forensic report. In addition to allowing the report, the trial court allowed for another analyst from the same scientific lab, Mr. Razatos, to testify to the reliability of Mr. Caylor’s report. Mr. Bullcoming was convicted and on appeal, the New Mexico Court of Appeals upheld his conviction, holding that the blood alcohol report in the present case was non-testimonial and prepared routinely with guarantees of trustworthiness.

In its 5-4 opinion by Justice Ginsburg, the Supreme Court reversed the lower courts ruling by first noting that since the time of the New Mexico Court of Appeals’s ruling where the Court found that a forensic blood alcohol report was “non-testimonial,” that the Supreme Court has since ruled on Melendez-Diaz. In Melendez-Diaz the Supreme Court held thatevidence admitted to the courts, such as affidavits reporting the results of forensic analysis, are testimonial and must be accompanied by testimony of an expert. Because of that ruling, the Supreme Court agreed that Mr. Caylor’s forensic BAC report is testimonial. Therefore, in reversing the lower court’s decision, the Supreme Court held that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification through the in-court testimony of an analyst who did not sign the certification, or personally perform or observe the performance of the test reported, i.e. Mr. Razatos. Finally, the Court found that because Mr. Calyor was unavailable and Mr. Bullcoming did not have an opportunity to cross examine Mr. Caylor before trial, the admission of the BAC report as well as the testimony of Mr. Razatos violated his Sixth Amendment rights.

Law Enforcement Experts in a Daubert Wisconsin

A recent Arson case has caused me to put a fair amount of thought into the future of police experts in Wisconsin. The case was filed before the effective date of Daubert in Wisconsin (February 2011) but the issues presented are important under either type of expert rule, i.e. a relevancy test or a Daubert test.

Say for example, an expert opines that the defendant started the fire. Or from a different case, the defendant was speeding causing the vehicular homicide. A detailed examination of the bases for the opinions reveals that a portion of each opinion is driven by a credibility determination made by the expert as some other witness. For example, the state fire marshal concludes that the defendant has lied about being present at the scene when the fire commenced, or the accident reconstruction expert has been told by a witness that they observed the defendant speeding a half mile up the road from the accident. In essence, a portion of the expert's ultimate opinion is a result of a credibility determination, which is clearly an inadmissible conclusion per State v. Haseltine, 120 Wis.2d 98 (Ct. App. 1984). However, 907.03 explicitly states:

If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

But wait a minute, just how poisoned are the ultimate conclusions(fire set by defendant, accidnet caused by defendant speeding) by this inadmissible evidence? Does the new 907.02 (or did the old?--I would argue it did) act as roadblock to allowing introduction of this expert's opinion because the well has been poisoned?

The Federal Advisory Committee had a inkling of this problem when the amendments to 702 were implemented in 2000. They wrote as follows:

"There has been some confusion over the relationship between Rules 702 and 703. The amendment makes clear that the sufficiency of the basis of an expert's testimony is to be decided under Rule 702. Rule 702 sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the expert's basis cannot be divorced from the ultimate reliability of the expert's opinion. In contrast, the ''reasonable reliance'' requirement of Rule 703 is a relatively narrow inquiry. When an expert relies on inadmissible information, Rule 703 requires the trial court to determine whether that information is of a type reasonably relied on by other experts in the field. If so, the expert can rely on the information in reaching an opinion. However, the question whether the expert is relying on a sufficient basis of information - whether admissible information or not - is governed by the requirements of Rule 702."

In other words, just because there is compliance with 907.03, doesn't mean automatic admissibility of the ultimate conclusion by the expert as to causation. As always it is time for advocacy.

What's Up with Bullcoming v.New Mexico

In a follow up to Melendez-Diaz, the Supreme Court accepted for review and recently heard oral argument (February 28) in the case of Bullcoming v. New Mexico. On first blush, it is a classic Crawford question and with all star Jeff Fisher arguing on behalf of Bullcoming, one would chalk this up in the win column for the defense. So what's up with the Court hearing this case?

The background of the case is relatively straightforward. Bullcoming was sent to prison for felony aggravated OWI. After refusing a breath test, the state took a blood draw pursuant to a search warrant. The state introduced the results of the test by introduction of the lab report. Bullcoming argued that the lab report was testimonial evidence subject to the Confrontation Clause. The state appeals court affirmed the conviction on the grounds that it was a business record and as a public record, the report was non-testimonial and presented no issue under the Confrontation Clause. While the case was pending before the New Mexico Supreme Court, the US Supreme Court issued its decision in Melendez-Diaz v. Massachusetts. The New Mexico court then ruled that the report was testimonial but still admissible even though the analyst who performed the test did not testify because the defendant had the option of crossing a surrogate witness (lab supervisor) instead of the analyst.

Fisher began his argument by postulating that this case should be an easy decision in light of Melendez-Diaz. Justice Ginsburg however quickly intervened and began to question Fisher about the possibility of such lab analysts appearing by video conferencing or some other option ala the child witness under Maryland v. Craig. Justice Scalia indirectly undercut the suggestion by positing whether the police office who took the confession could appear by televideo. Much more time was spent on how does the Court handle the situation where one analyst conducts part of the testing and another does the remainder. Do both have to testify?

This case will either solidify the Court's ruling in Melendez-Diaz or give law enforcement some type of out. We await the Court's decision. It is important to remember that Melendez-Diaz was decided by a 5-4 decision. Two members of the majority, Justices Stevens and Souter, are no longer on the Court.

Hearsay for Background Purposes

A subtle and frequent problem recently arose in a jury trial that I was involved in. All too often police officers will relate information that they have gathered from non testifying sources (i.e. confidential informants). The ostensible purpose for this testimony is to explain to the jury, the "background" of the investigation or "why they were there (e.g. conducting surveillance)." Typically, the information comes from a nontestifying confidential informant who is seeking some type of consideration. It is also typical that the content of the information is of the nature of "bad character" evidence. Way way too often either an objection is not made or the trial court allows this testimony because the state contends it is not for the truth of the matter asserted but is relevant for the reasons previously noted; background or course of the investigation. Unfortunately, the problem is then compounded because not only does the police officer who spoke with the informant testify but also all the subsequent radio calls among the responding officers come into evidence.

It is incumbent on defense counsel to object to this type of testimony. The grounds for the objection should be apparent. First, it is hearsay and a violation of the right to confrontation per Crawford. Second, it is not relevant and even if it is, the undue prejudice substantially outweighs its probative value (remember that probative value should be looked at on an incremental basis). Third, it is inadmissible character evidence.

Wisconsin practitioners should have two cases at their fingertips. First, there is an unpublished decision that agreed with the above analysis with little or no detailed discussion of the issues. In State v. ODonnell, 2000 WI App 1, the state conceded it was error but harmless. The appellate court disagreed and ordered a new trial.

A much more thorough discussion takes place in the 7th circuit case of United States v. Silva, 380 F.3d. 1018 (2004). An excerpt from the case relates a portion of the argument:

The prosecutor contends that most of the statements were admissible to show “the actions taken by [each] witness”.   Allowing agents to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination, would go far toward abrogating the defendant's rights under the sixth amendment and the hearsay rule.   This court has warned against the potential for abuse when police testify to the out-of-court statements of a confidential informant.   See United States v. Lovelace, 123 F.3d 650 (7th Cir.1997).   See also McCormick on Evidence § 249 (5th ed. 1999).  

While Silva acknowledges that sometimes this information could be relevant, the 403 balancing test will frequently tip in the defendants favor. Go forth and fight.

Wisconsin Adopts Daubert and Federal Rule 702

While the recent legislative activity ( passage of special session bill #1) caused a fair amount of controversy, a section of the bill specifically addressed a long time concern for criminal practitioners. Wisconsin amended its rule of evidence governing expert testimony (907.02) to come into conformity with Federal Rule 702, effectively adopting the Daubert standard. Due to an adherence to the relevancy standard since the decision in State v. Walstad, 119 Wis. 2d 483 (1984), Wisconsin trial courts have routinely admitted 'expert testimony' in criminal cases that I would characterize as 'junk science." Police or other law enforcement advocates would be qualified as experts and be allowed to describe the character traits of undefined third parties (defendants or complaining witnesses/victims) in other cases (undefined and undisclosed) they were involved in and opine that the present case was 'consistent' was those character traits. Simply put, they were allowed to opine that the facts of the present case fit the same pattern of other cases involving guilty defendants. Hopefully, the above change will encourage trial judges to exercise some independent judgment and scrutinize this type of testimony with some skepticism.

For those unfamiliar with the Federal Rule and its potential impact, a good case to read as a starting point is the 2nd Circuit's decision in U. S. v. Mejia, 545 F.3d 179 (2nd Cir. 2008). The court begins the decision with a survey of the development of officer expert testimony in the 1980s and court's generally favorable response to the same. It noted that courts had analogized the testimony of agents regarding gangs similar to that of anthropologists. Such an analogy is flawed because social science research is subjected to peer review, sometimes with a contrary viewpoint that examine the methodologies used. In sharp contrast, police experts are generally seeking information that will bolster the likelihood of conviction and their methodology and opinions are not objectively critiqued.

Bottom line is that this provides an opportunity for good counsel to do good work on behalf of one's client.

Jeff Fisher at it Again

Heads up....a petition for cert is pending in the case of Barbour v. State of Louisiana. Petitioner was convicted of attempted second degree murder by a less than unanimous jury. On behalf of the petitioner, Jeff Fisher seeks to have the court revisit its decision in Apocada v. Oregon, 406 U.S. 404 (1972) which held that state criminal convictions are not required by the U.S. Constitution to be unanimous. Jeff's petition simply states the issue as follows: "Whether the Sixth Amendment right to jury trial, as applied to the States through the Fourteenth Amendment, allows a criminal conviction based on a nonunanimous jury verdict." Jeff is joined by two powerful amici; the National Association of Criminal Defense Lawyers and the American Bar Association. It is time that this anomaly be corrected.

Jeff after you finish this issue, how about joining me in taking on the lack of a reasonable doubt instruction (and a prohibition on arguing its meaning) in the Seventh Circuit?