Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

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...

Do Crime Labs Have an Inherent Conflict of Interest?

Detroit has filed for bankruptcy, and it’s obvious that Michigan’s property tax revenue stream is thinner than it once was. Municipalities have sometimes hiked fees to make up for the lost funds, and sometimes it’s obvious their attempts to Band Aid holes in their budgets are threatening the judicial system. The Huffington Post’s Radley Balko deserves kudos for taking note of people’s fears and noticing the monetary incentives now tempting over-exuberant crime analysts in the law enforcement field. His Aug. 29, 2013, article, “New Study Finds That State Crime Labs Are Paid Per Conviction,” begins with an elaboration on the cognitive bias existing when crime analysts report to a state police agency or state Attorney General’s Office. Put the analysts’ job assessments and job reviews under the microscope lens of police and prosecutors, and, of course, you’re going to find an analyst eager to use science to find a criminal. Especially these days, when the mighty dollar is of the essence.

In Balko’s latest article, he writes about a study clearly stating its premise: “The Criminal Justice Creates Incentives for False Convictions” by
Roger Koppl and Meghan Sacks. He details the most noteworthy finds such as a crime lab that receives $10 for each guilty plea or verdict from a speeding ticket and $50 for each DWI (Driving While Impaired) and drug offense. Another specious fact: An Illinois crime lab receives fees upon sex offense convictions.

As Balko says, “every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They’re literally being paid to provide the analysis to win convictions.”

Balko finishes his article by noting scandals that arise from such practices. Balko isn’t the only one to predict more problems from such a compromised system.

Reid Method of Interrogation

The Reid method of interrogation remains popular despite the fact that it is roundly criticized. In fact, an early variation of the Reid method was critically referred to back in Miranda v Arizona. Innocence Projects around the country have further demonstrated its flaws. Police get confessions whether truthful or false. Recently, Psychology Today recognized that there is no science underlying the technique. They further recognized that it contains elements of “brainwashing” and “entrapment.” For an interesting Canadian decision criticizing the Reid method, click here.

Important Law Review: Why Courts Have to Take a New Look at Shaken Baby Cases

An important law review was just published on why courts need to be taking a new look at “shaken baby syndrome” based convictions based on the new evidence. The author of the article is Professor Keith Findley was is the director of the Wisconsin Innocence Project. This article is one of many recent developments which suggest that courts may finally have to reassess their position on this highly controversial diagnosis. Read More...

The State of Michigan Crime Labs

On Wednesday, the high court is deciding whether a Georgia man should be deported to his native Jamaica for having 1.4 grams of marijuana and sharing it without renumeration (e.g. sharing a joint with a friend). Read More...

Supreme Court Refuses to Extend Protections on Suggestive Eye Witness Identification

The United States Court of Appeals for the Tenth Circuit struck down an Albuquerque, New Mexico policy which attempted to ban convicted sex offenders from their libraries. In 2008 then Mayor Martin Chavez, ordered city libraries to send letters to registered sex offenders holding library cards to tell them they were no longer allowed in libraries. Doe v City of Albuquerque, Tenth Circuit Court of Appeals, No. 10-2102

The policy was challenged by the American Civil Liberties Union (ACLU) on behalf of a sex offender who until the mayor's action frequently used the city's libraries to check out materials and attended lectures and meetings there.
The Court upheld the lower court’s injunction noting that: “The First Amendment includes a fundamental right to receive information," a three-judge panel of the Court\ wrote. "By prohibiting registered sex offenders from accessing ... public libraries, the city's ban precludes these individuals from exercising this right in a particular government forum," the court said.

But the panel left open the possibility of allowing restrictions less stringent than an outright ban. "We therefore are especially mindful that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment."

However, the judges said city officials failed to look at other less restrictive approaches, including designating certain hours for sex offenders, requiring them to check in with library staff or restricting areas of the library that they could use.

Albuquerque Assistant City Attorney Gregory Wheeler said the city had adopted a less restrictive policy following the district court's ruling, so Friday's decision will have little immediate impact. Nevertheless, the city is analyzing the ruling to decide whether to appeal to the U.S. Supreme Court, he said, adding, "We are always looking for ways to provide more protection." Peter Simonson, executive director of the ACLU of New Mexico, hailed the ruling.

CBC's Fifth Estate Looks at Shaken Baby Syndrome

There was a great decision today from the US Supreme Court in Smith v Cain, Supreme Court No. 10-8145. Juan Smith was convicted of first-degree murder based on the testimony of a single eyewitness. During state postconviction relief proceedings, Smith obtained police files containing statements by the eyewitness contradicting his testimony. Smith argued that the prosecution’s failure to disclose those statements violated Brady v. Maryland. Brady held that due process bars a State from withholding evidence that is favorable to the defense and material to the defendant’s guilt or punishment. See id., at 87. The state trial court rejected Smith’s Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review.
A divided Court held that Brady requires that Smith’s conviction be reversed. The eyewitness’s statements were favorable to Smith and that those statements were not disclosed to him. Under Brady, evidence is material if there is a “reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” There, the eyewitness’s testimony was the only evidence linking Smith to the crime, and the eyewitness’s undisclosed statements contradicted his testimony. The eyewitness’s statements were plainly material, and the State’s failure to disclose those statements to the defense thus violated.
Smith is an unusual case because the Court agreed to hear it on certiorari to a state post-conviction relief decision. Normally, the high court refuses to hear such cases and encourages the litigants to use habeas corpus instead. Given the deference the high court has said such rulings are entitled to, I suspect that Smith would have lost if he followed the Court’s preferred route.

The "CSI Effect" Should Influence Jurors

Media outlets around the country are running two threads that are contradictory, but I doubt many papers have realized it yet. The first is the problem with the forensic labs, flakey experts, and shoddy investigations. The papers have been great about convicting the innocent. The papers, however, are also buying into the prosecutorial saw about the “CSI Effect.”

The argument goes something like this. Because jurors watch TV, they see all these tests which could have been run, but which are not. They are holding it against the State and wrongfully acquitting. This
weekend’s NPR question whether there is any statistical proof behind this assertion. So far, the proof is rather thin. In a recent Fordham Law Review, the author question whether the “problem” was bad as prosecutors claim. I was particularly troubled by the quotes from one prosecutor that CSI made the jury demand “slam dunk” evidence before convicting a defendant and this was a problem. Apparently in that prosecutor’s mind, proof beyond a “reasonable doubt” was something less than a “slam dunk.”

I agree that there is no central computer that functions like it does on TV. On TV shows, police agencies pull up credit card records, cell phone records, and other records on the fly. In the real world, the police have to contact the respective providers, obtain investigative subpoenas or search warrants, and it takes time. This is a time compression tool which allows tv police to solve a complex crime in an hour (less time for commercials).

I disagree, however, with the fact that jurors should convict a defendant despite the fact that the police didn’t do as thorough an investigation as they could because they didn’t deem the case important. We are locking someone up as a result of that investigation and evidence around the country is proving that first impressions aren’t necessarily right. How would people feel if their doctor took such an approach with cancer treatment?

Prosecutor’s are weaving this approach into jury selection, jury arguments, and the defense bar is sitting back and largely tolerating the same. Reduced to its essence this is a plea to further dilute the reasonable doubt standard.

When I started practicing law, jurors were instructed that a reasonable doubt was evidence (or the absence of evidence) which would pause a person in making the most important of life decisions. A common example was “knowing the flaws that you know” about this hypothetical house you are looking at, “would it cause you to walk away from the transaction.” Now, most judges tell a jury that a doubt must be based on reason and that a fanciful or hypothetical doubt is not enough. Prosecutors are arguing that the jury must be able to identify the doubt.

Now, the butcher is being allowed to put his second thumb on the scale with this so-called “CSI effect.”

CNN Runs Report on North Carolina Forensic Scandal

CNN is running some interesting reports on the North Carolina Forensics Lab. The latest report deals with the lab’s withholding of exculpatory (Brady) evidence in more than 200 cases. These stories will be covered Sunday night at 8pm (January 30, 2010) on CNN’s Rogue Justice.

Senator Leahy Introduces Federal Bill to Reform Forensic Labs

Yesterday, Senator Patrick Leahy (D-Vt) introduced legislation designed to strengthen and improve the quality of forensic evidence routinely used in the criminal justice evidence. The bill is designed to increase the overall integrity of the evidence and take on many of the problems that have recently popped up around the country involving sloppy forensic evidence and wrongful convictions. The bill will establish federal oversight over the labs under the joint supervision of the Department of Justice and the National Institute of Standards and Technologies. The bill is inspired by a February 2009 National Academy of Sciences report which identified massive problems in forensic science. Senator Leahy chaired two Senate Judiciary Committee hearings in the last session of Congress focusing on the report’s finding. He heard testimony from the directors of various state forensic labs and heard testimony about the need for improvement in these forensic investigations. Source: Vermont Column

First Case of Fake Fingerprints Confirmed

Yesterday, I attempted to play “sports commentator” and said that Florida v. Powell. After watching another quarter in the case (oral arguments), I still think it is too close to call. According to SCOTUS blog, it still sounds like a coin toss. Read More...

UK Police Arresting Suspects to Get DNA in System

Yesterday’s Guardian newspaper reported that UK police officers were routinely arresting suspects just to get their DNA in the UK’s national DNA database. The UK was one of the first countries to engage in comprehensive DNA collection. Many states (including Michigan) have copied many aspects of the UK program. Read More...

Macomb Circuit Court Grants 6.500 Motion in a Shaken Baby Syndrome Child Abuse Case. Court Finds Child Might Have Died from a Stroke

On November 20, 2009, the Macomb Circuit Court (Judge Biernat) granted post-conviction relief in People v Julie Baumer, Macomb Circuit No. 2004-2096-FH based on the ineffective assistance of her trial and appellate counsel in failing to seek to have a defense radiologist appointed to counter the State’s expert radiologist in first degree child abuse prosecution involving allegations of non-accidental trauma (“shaken baby syndrome”) inflicted within 12-24 hours of the images. The State’s experts testified that the injuries were the result of an intentional and very significant blunt force trauma. Defense counsel was aware of the need of a radiologist testimony to counter the state’s evidence, but couldn’t afford to call one. The Court found that defense counsel should have petitioned the Court to appoint an expert under MCL 775.15. The Court also stated that Ms. Baumer may be actually innocent, but that the Court did not need to reach this issue. To read the Macomb County Daily’s coverage of the evidentiary hearing, click here.


Israeli Researchers Prove that DNA Evidence Can Be Faked

American Bar Association President Carolyn B. Lamm Nov. 16 said the U.S. Supreme Court's recent opinion in Bobby v. Van Hook, Supreme Court No. 09-144 (U.S. 2009)(previously covered on this blog here), should not be read as minimizing the significance courts, attorneys, and legislators should attach to the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. See also this ABA summary of Van Hook.

Los Angeles Crime Labs

Update on Detroit Police Forensic Lab Closure

Ohio Court Limits Use of EgT Test

New York Federal Court Limits Ballistics Testimony

Detroit Police Forensic Lab Closed Due to High Error Rate

60 Minutes Takes on Bullet Lead Analysis