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: http://www.theatlantic.com/science/archive/2015/10/the-dark-side-of-dna-databases/408709/

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!

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.’”

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.

Yates v. U.S. to be argued Wednesday morning November 5

Supreme Court will hear oral arguments on November 5, 2014 to determine whether § 1519 which was enacted as part of the Sarbanes-Oxley Act, was only meant to apply to documents and objects used for recording, documentary, or informative purposes.

Petitioner was fined while at sea for catching prohibited undersized fish in the Gulf of Mexico. Petitioner was ordered to bring the undersized fish back to port with him, but he disposed of those fish while at sea. Upon his return to port, he was charged and convicted of violating of 18 USC § 1519 for destroying or concealing any tangible object, and USC § 2232(a) for knowingly disposing of undersize fish. The Eleventh Circuit affirmed Petitioner's conviction, and held that the trial court correctly interpreted § 1519, which made it a criminal offense to knowingly alter, destroy, or conceal any record, document, or tangible object with the intent to impede an investigation or administrative matter. The Supreme Court granted certiorari to answer the question of whether the Eleventh Circuit interpreted § 1519 correctly.

It must be criminal law day as Yates is followed by the Johnson case which addresses whether possession of a shotgun is a violent felony under the Armed Career Criminal Act.

SUPREME COURT REVERSES TREND

In contrast to the cases selected to be heard this term, the Supreme Court accepted cert on a criminal case out of the state of Ohio that directly addresses a lingering Crawford issue.  From the Williamette University College of Law:

Ohio v. Clark

Date Filed: October 2, 2014
Case #: 13-1352
Court Below: 999 N.E.2d 592 (Ohio 2013)
Full Text Opinion:  http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/2012-0215-Ohio.pdf

EVIDENCE: (1) Whether individuals acting under mandatory reporting statutes become law enforcement agents under the Confrontation Clause; and (2) whether non-emergency hearsay statements from minor children to such individuals are testimonial statements under the Confrontation Clause.

Respondent was charged and convicted on child abuse charges. A state appeals court reversed, holding that testimony of teachers’ and other non-police (“teachers”) relaying the child’s non-emergency statements violated the Confrontation Clause; the child’s statements primarily accomplished the purpose of identifying the source of past injuries for possible police investigation and prosecution when the teachers acted in compliance with their statutory mandate to report their suspicion of child abuse to police. The Ohio Supreme Court affirmed. Petitioner sought a writ of certiorari in part because of splits among the states on the issue, which affects mandatory reporting laws in every state.

Petitioners argue that the Confrontation Clause disqualifies testimony based on statements deemed testimonial – in this instance, statements made to law enforcement agents during “police interrogations.” Crawford v. Washington, 541 U.S. 36, 68 (2004). When the primary purpose of police questioning is investigatory and not in response to an emergency or similar situation, such statement are testimonial. Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). Federal law is silent on whether statements made to non-police individuals are testimonial, but Ohio applies the primary purpose test “to a child declarant’s statements made to police or to those the court determines to be police agents.” Ohio v. Clark, 999 N.E.2d 592, 598 (Ohio 2013). Individuals primarily questioning children to identify abuse perpetrators in compliance with mandatory reporting statutes are police agents because their actions serve a law enforcement purpose. Id. at 596-97.

OCTOBER 2014 TERM OF THE SUPREME COURT

The upcoming Fall term of the U.S. Supreme Court has very few criminal cases set for review. Out of 40 cases selected for the term, only four involve criminal cases.  Additionally, the cases do not seem to have any earth shaking issues or issues of national import.  A brief summary follows:

1. Elonis v. United States, the question is whether a prosecution under 18 U.S.C. 875(c) requires proof of the defendant's subjective intent?  Wonder how many times this statute is used in indictments?

2. Johnson v. United States, Does mere possession of a short-barreled shotgun warrant treatment as a violent felony under the ACCA?  Are you sleeping yet?

3. Wakefield v. United States, Under the federal bank robbery statute, 18 U.S.C. 2113, what is factual necessary to establish the forced accompaniment provision, thus invoking the mandatory minimum?

4. Yates v. United States, interesting because of its facts and the application the anti shredding provision of Sarbanes-Oxley, 18 U.S.C. 1519. Commercial fisherman destroys fish after being civilly cited for harvesting undersized fish from the Gulf of Mexico and told to bring them back to port.

Hey Supreme Court there are more serious issues out there percolating out of the Circuits.  On the other hand perhaps I should be careful what I wish for.

Reflection

It has been awhile since I have posted.  Recently, it has been a time for reflection.  Two of my closest mentors past away this last year.  Jack VanMetre and John Hanson were class individuals who were both excellent lawyers in their own right.  They taught me the two most important ethical rules to conduct your practice by.  Rule #1--Never ever put your client in harm's way.  Rule #2--the only thing you have in this profession is your word.

Those two simple rules encompass not onlyWI SCR Chapter 20 but everything that is important in how one handles themselves day to day, hour to hour in the practice of law.  They taught me these rules and they lived these two rules. I judge my cohorts by these two rules.

Although, I did not have a lot of contact with them the last 5 years, they remain with me as I continue my practice.  To both, "Godspeed."  I suspect that there were those long gone who needed a lawyer to advocate for them.