Friday, October 9, 2015

DNA Statistics Under Review

We really really have to pay attention to forensic sciences in criminal cases.  While I have focused on arson, handwriting and presently abusive head trauma; I can sense that the protocol for matching in DNA cases along with the underlying statistics will make that arena a future battleground.  The recent issue of Atlantic magazine has brought the future to the present.  See:

The article starts by noting:

In 2001, an analyst in the DNA unit of Arizona’s state crime laboratory noticed something interesting. Two seemingly unrelated individuals—one white and one black—shared the same two markers at nine of the 13 places in the standard DNA profile. Yet that particular genetic profile should have been exceedingly rare.
According to the standard method of computing how often one might expect to encounter a particular DNA profile in the population at large—what is known as the “random match probability”—if you plucked a non-Hispanic white person at random from the population, there would be only a 1 in 754 million chance of finding that profile. For African Americans, the number was 1 in 561 billion. And yet here, in a database of less than 100,000 people, it was appearing twice—and in people of different races.

Here we go.  The future is now!

Sunday, August 9, 2015

U.S. Supreme Court Spring Term

While criminal cases did not dominate the Court's attention this past term, there were cases of note.  Johnson v. United States deals with the residual clause of the ACCA and is of interest solely to federal practitioners.  On the other hand, a progeny of Crawford will be front and center for everyone.  Professor Chemerinsky notes as follows:

In Ohio v. Clark (PDF), issued June 18, the court unanimously ruled that it did not violate the Confrontation Clause of the Sixth Amendment when statements of a 3-year-old boy were introduced against a criminal defendant without the boy testifying in court. In response to questions from his teacher, the boy had said that he had been beaten by his mother’s boyfriend, Darius Clark.
In Crawford v. Washington, decided in 2004, the court held that prosecutors cannot use testimonial statements from unavailable witnesses even if they are reliable. But the court did not attempt to define what is testimonial, and courts have struggled with the issue for more than a decade.
Ohio v. Clark offers important clarification of the meaning of “testimonial.” The court ruled that the boy’s statements to his teacher were not testimonial because they were not made with the primary purpose of creating evidence for prosecution. Justice Samuel A. Alito, writing for the court, declared: “Thus, under our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. ‘Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.’”

Sunday, February 1, 2015

NACDL Releases Report on Court Failures in Enforcing Brady v. Maryland

Last November, the National Association of Criminal Defense Lawyers in conjunction with the VERITAS Initiative at Santa Clara Law School issued its groundbreaking report:  Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases.

The release of this report coincides with my present reading of the book: NOT GUILTY: The Unlawful Prosecution of Ted Stevens. For those of you unfamiliar with the case, the book is a fascinating read of prosecutorial misconduct in pursuing a conviction at all costs. A follow up report of the case and the behavior of the prosecution released in 2012 was described by ABC News as follows:
A court-appointed special prosecutor has determined that serious misconduct by Justice Department prosecutors tainted the federal investigation and trial of former Sen. Ted Stevens, according to a report released Thursday.
“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,” the report noted.

I am convinced that many prosecutors are never trained or supervised in their ongoing obligations to provide the defense with evidence that helps the accused.  This failure leads to wrongful convictions and all the costs that go with it.

While the NACDL Report concludes "that Courts are impeding fair disclosure in criminal cases, and in so doing, encouraging prosecutors to disclose as little favorable information as possible. With Brady, the Supreme Court held that non-disclosure only violates the Constitution when the
information is material. This holding established a post-trial standard of review that
many prosecutors have adopted as the pre-trial standard governing their disclosure
obligations. Despite ethical rules that set forth a disclosure obligation far broader
than Brady, many prosecutor offices, and even some courts, have taken the same
incorrect position — prosecutors need only disclose as much as necessary to ensure
the conviction survives appeal."

The NACDL Report recommends step by step detailed changes to address the problems presented.