Elimination of Preliminary Hearings in Wisconsin

A lively discussion took place this morning on WisconsinEye concerning the Attorney General's recent public statement that preliminary hearings in Wisconsin should be abolished. To see the entire debate click here.

FEDS CONTINUE TO FOCUS ON $$$

For those of you who practice in Federal Court, there has been a noticeable focus on defendant's financial condition. First, it is a major topic during the pretrial services interview, ostensibly for purposes of considering release pending trial. However, I can never shake the feeling that it's real purpose is to set up the defendant for imposition of a fine or for recovering restitution if the defendant is convicted.

Second, there has been renewed focus on recovering restitution from defendants. While the government can literally follow you to the grave trying to civilly recover unpaid restitution, the efforts to collect during a defendant's period of supervised release have reached a new milestone. In the Western District of Wisconsin, the following has now become a condition of post incarceration release:

Special Condition 6: “Undergo at least one financial evaluation per year which may involve use of a polygraph, as approved by the supervising U.S. probation officer.”

Have we really reached the stage of using polygraphs ala sex offenders to verify a defendant's financial condition? Oh boy, one can only imagine what is next.

Hopefully my next post won't be quite as depressing.

P.S. Maybe this will allow defendant's to use polygraphs in a pre-emptive manner at non trial hearings. Sure, and I've got some moon rock for sale.

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.