Excellent Critique of the Reid Method

A friend just sent me a 2013 New Yorker article on the Reid Method of Interrogation called “The Interview: Do Police Interrogation Techniques Produce False Confessions?” I think I read it when it came out, but it was definitely worth a second read. In doing a little research on the subject, I also noticed that more media outlets are running with the story this including this article from the New York Times, this one from Psychology Today, and this one from PBS. The Reid Method of interrogation has been directly tied to wrongful convictions of individuals such as the Central Park Jogger case, and more. Despite all these criticism, it amazes me how much emphasis people put on confessions. More disconcerting in this tendency of many judges to bar expert testimony about the problems with false confession.

For a more academic analysis of what’s wrong with the Reid method, please review this article. This article is somewhat dated but excellent. It is written by two of the nation’s top experts.

Mich. Supreme Court Strikes Down Sentencing Guidelines

In much anticipated ruling, the Michigan Supreme Court has struck down the Michigan Sentencing Guidelines on Sixth Amendment grounds. For the last decade, the Court has been steadfastly refusing to consider this issue. On July 29, 2015, the Court finally invalidated the mandatory nature of the guidelines. The Michigan Sentencing Guidelines will now be treated as advisory in the same way that the federal guidelines are treated as voluntary. People v Lockridge, Supreme Court No. 149073.

SCOTUS Strikes Down ACA's Residual Clause

Individuals with a prior criminal record can have face fifteen year minimum sentences if they commit a new offense while possessing a firearm. These penalties are often harsh and unyielding. In Johnson v United States, the Supreme Court struck down the residual clause which made individuals guilty of violating this offense for having prior offenses which had a general element of violence. Under the modified categorical approach adopted by the court in past decisions, the focus is not on the specific offense, but the elements of the offense generally. Whether a particular offense qualified as a violent offense under the ACA was a point on which many legal minds often quibbled. Reversing a 2011 ruling, Justice Scalia writing for the Court found that the so-called residual clause constituted cruel or unusual punishment. Johnson v United States, No. 13-7120.

Interpol Announces Reform on Red Notice Process With Refugees

On May19th, Interpol announced major reforms in its process of handling Red Notices as applied to refugees. At the meeting of the Parliamentary Assembly for the Council of Europe or Pace, Interpol announced significant reforms for purposes of confirmed refugees. These reforms were largely due to the campaign by the European human rights group FAIR to expose the inequalities and abuses in the current system.

FAIR summarized the reforms on its
website as follows:

We need written confirmation of the policy, but this is what we learned: INTERPOL has notified the policy to the National Central Bureaus, the national police contact points for INTERPOL, but has not disseminated it further. In substance, the policy is that INTERPOL will remove a Red Notice if it can verify that the person has been recognised as refugee under the 1951 Convention. It does not matter whether the criminal prosecution in question was the ground for the asylum or not; the grant of asylum suffices. INTERPOL will not reveal to the country behind the Red Notice which country granted asylum, to address confidentiality concerns. There are, however, important caveats: (A) INTERPOL must be able to verify the asylum grant, which asylum-granting countries may be slow to do for confidentiality reasons, and (B) the country issuing the Red Notice can revert to INTERPOL with further material asking it to revisit the decision.

This point was also covered in a prior Interpol resolution,
AGN/53/RES/7 in 1984 and before that in AGN/20/RES/11 in 1951. The problem is that political offenses are difficult to define and nation states almost always artfully plead these offenses. Congratulations to FAIR.

Governor Snyder Gets Smart on Crime

As Governor Snyder’s term as governor is beginning to sunset, Governor Snyder has finally discovered the need to get “smart on crime.” In an amazing policy paper for a Republican Governor, Governor Snyder proposed introducing a number of impressive reforms.

Early in office, the governor dismantled many of the reforms that former Governor Jennifer Granholm had put in place. Under her Director of the Department of Corrections (Patricia Caruso), Michigan was a nationwide leader in cutting its prison population. This movement was criticized by the prosecutors as getting soft on crime. When Governor Snyder entered office, he dismantled many of his predecessor’s reforms. He is now seeing the wisdom in this programs. One of the unfortunate aspects of term limits is that many politicians are often forced to relearn hard learned lessons. Getting tough on crime is superficially appealing, but it doesn’t work. It breaks state budgets, does not deter crime, and often increases violence. I am delighted that Governor Snyder is finally learning his lesson and can only hope that his successor does not have to repeat the process yet again.

Interpol Drops Red Notice for Ex-Justice Minister

Interpol has withdrawn ‘red notice’ for Georgia’s ex-justice minister Zurab Adeishvili, who is wanted by Tbilisi for number of criminal charges. His allies believe the charges are politically motivated According to the Georgian website civil.ge:

“On April 9, 2015 the Georgian chief prosecutor’s office was notified by Interpol general secretariat that it has revoked red notice against Zurab Adeishvili,” the Georgian prosecutor’s office said in a statement released on April 14 after it emerged that ‘red notice’ against Adeishvili was taken down from Interpol website and his name removed from its wanted list.
The Georgian prosecutor’s office said that in its notification Interpol cited “granting of a refugee status to Adeishvili by one of the countries” as the reason behind its decision to revoke red notice against Georgia’s ex-justice minister; prosecutor’s office said it does not know which country it was.”

Tragically, Red Notices frequently are used to stop people from getting refugee status, but once they get the status, Interpol can be persuaded to remove the notice. In the case of Mr. Adeishvili, the Georgian authorities were apparently upset because the notice was removed without giving them an opportunity to respond. In a separate statement the Georgia prosecutor proposed adding asylum notations to I-link (Interpol’s database) rather than deleting the

Demanding Admissions of Guilt as a Condition for Parole

There was an interesting article in the New York Times (and part two here) about how at least New York Parole boards are starting to move away from the position that an offender has to admit guilt as a precondition of parole. As more and more exonerations have shown us, a prisoner’s claims of innocence are real. Additionally, parole board’s often demand the offender accept the victim’s versions of events when the truth is somewhere between the two positions. More troubling is the continued belief that confession is good for the soul. Many habitual offenders are very good at apologizing and showing remorse when caught. The problem is that they go right out and commit new crimes again. Conversely, the individuals who do not feign a confession to get their freedom may be demonstrating much higher moral character. Then there is the question of a pending appeal. An individual maintains their Fifth Amendment right to remain silent through the conclusion of their direct appeal. These procedures place too high a tax on the defendant exercising his/her Fifth Amendment rights.

The United States Supreme Court
split badly the last time the question was before them about whether an offender could assert the Fifth Amendment privilege of self-incrimination without penalty at a parole interview. The deciding vote was Justice O’Connor who has since left the Court.

Rule Change Eliminates Tome in Federal Cases

There is a significant amendment to the rule on prior consistent statements 801(d)(1)(B).  Up until now, prior consistent statements were non-hearsay only when elicited to rebut a charge of recent fabrication.  The amendment does away with that restriction.  Beginning on December 1, prior consistent statements will be admissible as substantive evidence to rehabilitate the witness after any kind of attack on credibility – memory, perception, etc.  Watch out for more Government sandbagging! While the Committee Comments claim that the rule retains Tome’s restriction (e.g. that the prior consistent-statement has to be pre-motive for fabrication), the proposed amendment makes the concept so difficult to define that Tome lives on in name only. At least that is my prediction, stay tuned.

For a nice history of this amendment, checkout this summary on the Federal Evidence Review

Time to Get Smart on Crime

Rep. Joe Haveman has introduced a number of bills to get smart on corrections. The bills would reduce sentences and increase supervision. It would also create sensible parole and probations reforms. Corrections cost the state a great deal of money and these bills make a great deal of sense. Unfortunately, they are being opposed by Attorney General Bill Schuette who is clearly trying to gain political capital by calling for tough sanctions on everything. I truly hope that General Schuette has thought through the costs that his positions will bring. For some reason Republican fiscal prudence is lost on some when it comes to corrections. It costs over $40,000 per year to house inmates and this needs to be factored in. Unfortunately, one of the problems with our modern day criminal justice system is that the successes are never heard from again and the failures make front page on the news.

CoA Says that Deroche Doesn't Apply to Actual Possession Cases

In People v. Deroche, 299 Mich. App. 301 (2013), the Michigan Court of Appeals held that a Defendant’s Second Amendment right to keep and bear arms invalidated Michigan’s statute barring a firearm while intoxicated. In Deroche, the Defendant was at home and intoxicated. The firearm was stored elsewhere in the home, but was also under Mr. Deroche’s control and dominion. This would have met the legal requirements for “constructive possession.” The Michigan Court of Appeals held that the Second Amendment barred this constructive possession theory.

In People v. Wilder, No. 316220, declined to extend Deroche to an actual possession situation. In Wilder, there was evidence that the Defendant actually moved the firearm while intoxicated. The Court, therefore, found that the statute met the intermediate scrutinity required for a Second Amendment analysis.

Ms. Wilder had been drinking most of the day with her domestic partner. The complainant testified that the defendant brandished the gun at her after she hit the complainant, strangled her, and told her to get out of the house; the Defendant testified that she moved the firearm to a place of temporary safety from her drunken partner. She denied the brandishing.

The Court of Appeals applied a two-prong test to determine and determined that the application did not violate the Defendant ‘s Second Amendment rights. The take-away is that gun owners who choose to drink in their own home will face judicial scrutiny if they have a firearm on their premises and drink. Person’s considering drinking at home should physically lock their firearms up prior to consuming any alcohol.
People v Wilder, Court of Appeals No. 316220.

Court of Appeals Rejects Challenges to Y-STR DNA

In People v. Wood, the Court affirmed the trial court’s admission of Y-STR DNA testing to isolate the male Y-chromosome DNA on a scarf used to bind the victim’s hands.  The scarf contained DNA from four individuals, only one of which was a man.  The Court recognized that Y-STR DNA testing is an accepted practice, and held that the method’s limitations go to the weight rather than the admissibility of the evidence. The Defendant (and a co-defendant) had broken into

The Defendant raised a Daubert challenge to the Court’s decision to admit the DNA evidence from a scarf used to bind the victim’s hands. Because the scarf contained DNA from at least four people (only one of whom was male) the forensic analyst used the Y-STR method of DNA testing to isolate the male Y-chromosome DNA.

Unlike more common STR DNA testing, which can identify a unique individual, Y-STR DNA testing cannot because a man will have the same Y-STR DNA profile as his father and grandfather, and because random matches in the general population are also possible. Stated another way, Y-STR is significantly less reliable to than STR testing.

Since the forensic analyst testified in detail about the limitations of Y-STR DNA evidence, and Y-STR DNA testing is an accepted practice, the court held that the method’s limitations go to the weight rather than the admissibility of the evidence and it was properly admitted.
The Court of Appeals also rejected the Defense 404(b) challenge and the defense prosecutorial misconduct challenge.
People v Woods, Court of Appeals No. 315379.

Israel Appeals To Interpol to Drop Turkey's Red Notice

Israel has filed a formal challenge to Turkey’s decision to file Red Notices against a number of Israeli officer involved in the Gaza blockade and their efforts to frustrate Turkey’s “blockade running.” Whatever your politics on the Israel/Palestine issue, this is plainly a violation of the Red Notice procedure. To read the article on the notice and the challenge, click here.

New DOJ/Commerce Department Task Force on Forensic Reforms Launched

The Department of Justice and the Department of Commerce have announced a blue ribbon task force on forensic reform. Members of the committee include not only prosecutors and law enforcement, but also people with strong ties to Innocence Projects and forensic scientists who have been critical of the methodology used by some crime labs. This court be big! The full story is the DOJ’s press release. Read More...

Michigan Legislature Consider's Forfeiture Reform

When a crime is allegedly committed, the police and the prosecution can often seize items related to the crime. This can sometimes happen when the owner of the property is completely innocent. In tough times, this has created a conflict of interest in the police and prosecutors. They can easily make a ton of money to help their departments at the expense of innocent individuals. Two bills were recently introduced in the Michigan Legislature to place some modest limits on this problems. HB 5213 would require a criminal conviction before a forfeiture action could be filed. HB5081 tightens up the reporting requirements on the forfeiture so that problem departments can be identified in the future.

Washington Post Criticizes "Sledge Hammer Justice"

There was an interesting editorial by George Will in today's Washington Post about “sledge hammer” justice about how the prosecutor can use its charging discretion to force most defendant’s to plea guilty or face exceptionally long sentences. While some consideration should be permitted for pleas, when is the “trial tax” too excessive?

Michigan Court of Appeals Rejects Alleyne Challenge to Guidelines

For the last ten years, criminal defense attorneys have thought of Michigan sentencing guidelines were unconstitutional.
In Apprendi v New Jersey, the Court held that a State could not avoid the reasonable doubt standard by shifting elements of a criminal offense to the sentencing phase. The Court stated that factors which raised penalties are de facto elements which must be proven beyond a reasonable doubt to a jury. Over the last ten years, the Michigan Supreme Court has continuously rejected this argument despite the fact that the United States Supreme Court has been consistently expanding the Apprendi doctrine.
Last year, I blogged about a United States Supreme Court rolling called Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), which I thought was the last nail in this flawed argument’s “coffin.” How wrong I was.
Yesterday, a panel of Michigan Court of Appeals rejected the Elaine challenge in
People v Herron, Court of Appeals No. 309320. The court distinguished every United States Supreme Court case along this line based and distinctions which this author believes are irrelevant. If they willing of our Court of Appeals is mirrored by the Michigan Supreme Court, the only remedy that a defendant world will receive is likely to be from the United States Supreme Court. Stay tuned, this issue is far from over.
Mr. Herron is represented by Christine Pagac at the State Appellate Defender’s Offender’s Office.

Dissenting Judge Kozinski Recognizes Epidemic of Brady Suppression

Ninth Circuit Judge Kozinski may be a conservative, but he has long ago earned my respect for his honesty and ability to not simply tow the party line. His dissent in United States v Hicks, Ninth Circuit No. 10-36063 is no exception. It is rare that a dissent may be a call to action, but this case may be that exception.
Brady v Maryland prosecutors to disclose all evidence which is exculpatory in nature or which mitigates punishment. Unfortunately, in our adversarial system prosecutors are often tempted to bury this evidence. The problem comes with the fact that the person exercising this judgment has a conflicting obligation Moschus is to try and convict a defendant. What prosecutor is theoretically the Minister of Justice career advancement is normally based on convictions. Prosecutor to conceal evidence rarely phrase discipline for doing so and I virtually never prosecuted.
Kenneth Olsen was charged with developing chemical weapons of mass distraction. There was evidence presented at trial that he was attempting to develop the chemical ricin. The quantities impurities of this drug however were so low that the government was going to have a difficult time proving that the defendant had any intent to injure other people. To overcome this, the assistant United States attorney call Arnold Meinkhoff as their expert witness. Prosecutor concealed an internal investigation which showed huge problems with this expert witnesses integrity or level of care. Fourteen of his one hundred investigations which were audited showed serious problems.
This was never turned over to the defense counsel. The majority of the Ninth Circuit Court of Appeals upheld this nondisclosure. A majority of United States Court of Appeals for the Ninth Circuit then denied en band rehearing.Judge Kozinski not only dissented from the results in that case, but noted that Brady violations had reached epidemic proportions.
Judge Kozinski further wrote:
“The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

The problem is systemic. Prosecutors cannot be trusted to determine what evidence must be turned over to undercut their cases. Courts need to move this determination from the prosecutor to an independent master. Similarly forensics needs to be moved from an adversarial branch government to a branch under the court which is not incentivized in anyway to call a matter in one want manor or the other. These experts also need to be shielded from the other evidence and opinions in the case so that all they are determining is based on the evidence they are charge with investigating.

Improper Prosecution PowerPoints Lead to Reversal of Washington and Nevada Cases

Appellate counsel are well advised to fight for video disks and prosecutor power points in trials. The States of Washington and Nevada recently reversed prosecutor’s for using PowerPoints closing arguments with images of the Defendant and the word “Guilty” superimposed. The Courts say that the prosecutor cannot imply personal opinions of guilt and that the PowerPoints were far more powerful than mere words. Here is a link to the Washington case and here is a link to the Nevada case. The slide is a mockup of the particular slide described as improper by both the Nevada and Washington appellate courts. MOCKUP.001The slide is a mockup of the particular slide described as improper by both the Nevada and Washington appellate courts.

The Trial Tax

There is a very interesting article in Today’s New York Times on the trial tax. It recognizes what most defense attorneys often know. Defendants who demand jury trials and assert their innocence or often threatened with very severe penalties by the Government to try and force them to forego a trial and take a plea. Even the innocent capitulate. The US Supreme Court upheld this conduct in Bordenkircher v Hayes but there needs to be limits. I understand that settlements mean posturing and that both sides settle which they are not completely happy with, but there can be differences running in the decades.
It is easy to think that you would stand your ground if you are actually innocent, but what would you do if they offered you probation for an offense you did not commit versus twenty years in the joint if the jury convicts. The Acceptance of Responsibility scorings on the Sentencing Guidelines were meant to create an acceptable difference. It gives you about a 15% discount on the average sentence for pleading guilty. The practices outlined by the New York Times are highly problematic.

Dearborn Disqualification Upheld

I won a nice win today in the Court of Appeals in Dearborn v Navoy, Court of Appeals No. 311069. Dearborn District Judge Somers has been an outspoken critic of medical marijuana and actually wrote an opinion declaring the law unconstitutional. Despite his repeated comments about his disbelief of the legitimacy of medical marijuana, his belief that that it is the “devil’s weed,” and his long monologues against the drugs, he refused to remove himself from Dearborn v Navoy. The District Chief Judge removed him, the Circuit Court affirmed, and now the Court of Appeals firmed in the linked opinion. While not clear from the opinion, Mr. Navoy has a medical marijuana card. We are placed that our client will have an opportunity to present the matter to a judge who has not staked out the position that Judge Somers has taken.
I also want to give a public nod to my colleague and friend Neil Rockind for his brilliant work in the case. He is a truly great co-counsel.

Great Ruling on False Light Arguments from Sixth Circuit

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) definitely complicated the pursuit of habeas corpus relief. The incarcerated can no longer write successive petitions and a defendant’s appeal must contain all claims. Furthermore, the only successful habeas claims are the ones where convictions are transparently contrary to “clearly established federal law” or an “unreasonable determination of the facts in light of the evidence.” 28 U.S.C. § 2254. Supported by the United States Department of Justice, Vanderbilt University Law School released a 2007 study, “Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996.” Its conclusion was as follows: There are slower completion times per case and fewer petitions granted on average.

Then the Sixth Circuit issued its October 30, 2013, Peoples v Lafler opinion. A three-member panel criticized a Michigan prosecutor for a false inference argument and deemed that it was prosecutorial misconduct. The court ruled that AEDPA precluded them from reviewing the case, yet the issue that ultimately was considered dicta in the appellate opinion may nudge open AEDPA’s heavy door. In Peoples v. Lafler, two witnesses told a similar story that was the only evidence connecting Jesse Peoples to the murder of
Shannon Clark, a Detroit drug dealer fatally shot outside his home. However, the evidence was “known false testimony” and “trial counsel did not use the only hard evidence at his disposal to prove that the two witnesses not only lied, but told the same lie,” the appellate court said in its opinion.

Three months after Clark’s death, police arrested Jesse Peoples, Demetrious Powell, and Cornelious Harris after the men led police on a chase in a stolen Jaguar that ultimately crashed. Police found on the driver’s side floorboard the pistol that killed Clark. Also, a police officer witnessing the crash writes a report identifying Harris as the driver. Peoples, while awaiting trial, mailed defense counsel a copy of the police report, indictment, and criminal docket sheet showing that Harris was the Jag’s driver. However, they are ignored and Harris and Powell are able to spin a similar story about Peoples’ involvement.

The Sixth Circuit partially reversed the decision relating to Peoples’ ineffective assistance of counsel claim and remanded the case to the district court to conditionally grant a habeas corpus writ, giving the State of Michigan 90 days to retry Peoples or release him from custody. Quoting the opinion, “ ‘[i]t is particularly unreasonable to fail to track down readily available and likely useful evidence that a client himself asks his counsel to obtain.’ Couch v. Booker, 632 F.3d 241, 247 (6th Cir. 2011). Where, as here, counsel fails to use a police report, indictments, and criminal docket sheets the client himself obtained that would have proven counsel’s own defense theory, the failure is, a fortiori, unreasonable to the point of constitutional deficiency. It certainly is not, by any objective measure, sound trial strategy.”

The appellate court’s AEDPA deference delved into discussions of a “modified form of AEDPA deference,” in which the court focuses on the result rather than the reasoning of the state court. Hawkins v. Coyle, 547 F.3d 540, 546 (6th Cir. 2008). The question then, according to the court, is whether there was a reasonable likelihood that the trial’s outcome would have been different if the known false testimony had never been presented. The court concluded that there was other testimony connecting him to the murder so there was no reasonable likelihood that the outcome would have been acquittal or conviction on a lesser charge. Keep in mind, the court decided in this case to “REMAND the case to the district court with instructions to conditionally GRANT a writ of habeas corpus.”

Michigan Supreme Court Grants Leave on Carp and Eliason and J-LWOP

The Michigan Supreme Court just granted permission to appeal on People v Carp and People v Eliason. These cases deal with the retroactivity of the United States Supreme Court’s ruling in Miller v Alabama (Carp); and the appropriate remedy should be for these individuals (Eliason). The Court has also agreed to hear a third case where the question is whether a juvenile convicted of aiding and abetting first degree murder can potentially receive a natural life sentence or whether Graham v Florida bars this. I will post an update to this with links to the various orders in the near future. In the mean time, here is a good link from M-Live.

Canadian Supreme Court Finds Exceptional Privacy in Computers

Hats off to the Canadian Supreme Court in Regina v Vu, 2013 SCC 60 (2013) for recognizing what so many American courts don’t seem to get -- that computers are different. Police are now routinely seeking (and unfortunately getting permission) to search everyone’s computers when they have probable cause of any evidence of crimes. The Canadian Supreme Court said that there has to be individualized probable cause to search a computer and that the police cannot get to its contents by virtue a general search warrant to search a home.

Federal Court Grants Writ in Aceval Police Perjury Case

People v Alex Aceval is one of the strangest cases I have ever worked on. There is no disputed that the State presented perjured testimony at my client’s trial. The judge granted the prosecutor’s secret motion for permission to present this testimony and had a court reporter transcribe the motion. The prosecutor was disbarred for it. The case wrecked the judicial career of the judge who was forced into retirement with a blot on what would have been an otherwise distinguished career. Most of the police were convicted as well.

Still, the State of Michigan steadfastly argued that Mr. Aceval’s conviction was not tarnished by the perjury. Recently, Judge Tarnow disagreed. Calling the Defendant’s trial a sham the judge said that the charges should have been dismissed with prejudice. Earlier this week, Mr. Aceval was released a free man. The state has not decided whether it will appeal.

Google Goes After Mugshot Sites

I was delighted to read that Google has finally decided to tweak its algorithm to downgrade the so-called Mugshot sites. These sites publish the mugshots and arrest details of individuals who have been arrested for a crime, even when the charges are dropped or the individual pleads to a deal which does not result in a criminal record.

The sites usually work closely with a so-called removal service which will remove your name from their website for a payment of $400 or so. Some charge more; some charge less. Most of the sites also have a free removal process, but my clients have reported to me that the free removal services is overly cumbersome and the sites will only comply if there is an express statute banning the publication of the information. Thus, if the offender pleads to a deferred adjudication with no criminal record, many of these sites will leave the charges up even though the individiual has never been convicted of an offense.

There is also a rising grass roots movement against these
sites. Many people feel that they have been the victim of blackmail and that even when they capitulate and pay the money, their name promptly prompts up on a new server. It effectively becomes a game of “whack a mole.”

The article also reports that many credit card processors have refused to handle these removal businesses and that PayPal has banned them as well. While I feel positive about these developments, my unscientific experiment showed that these sites still come up on the top with respect to my former clients with sheltered convictions. Amending the Fair Credit Reporting Act to cover these sites would be the answer in this author’s opinion. It already covers some
dissemination of criminal records.