Court-Martial Trial Practice Blog

Forensics rants

May 12, 2009 | The Law Office of Philip D. Cave

Here’s a new law review article to go along with my rants about how prosecution expert and forensic evidence can be biased, it’s difficult to deal with, and the system allows the problem.

Volume 95, Issue 1
Brandon L. Garrett and Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009) View PDF

This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing. Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed. These trials most commonly included serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing. This study found that in the bulk of these trials of innocent defendants—82 cases or 60 percent—forensic analysts called by the prosecution provided invalid testimony at trial—that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data. This was not the testimony of a mere handful of analysts: this set of trials included invalid testimony by seventy-two forensic analysts called by the prosecution and employed by fifty-two laboratories, practices, or hospitals from twenty-five states. Unfortunately, the adversary system largely failed to police this invalid testimony. Defense counsel rarely cross-examined analysts concerning invalid testimony and rarely obtained experts of their own. In the few cases in which invalid forensic science was challenged, judges seldom provided relief.

Do we punish the innocent?

May 10, 2009 | The Law Office of Philip D. Cave

The University of Pennsylvania PENNumbra has an interesting dialogue about plea bargaining, the unlimited unregulated powers of prosecutors, and those who might be innocent, but plead guilty anyway.

There are three points of view. Of the most interesting seems to be that innocent accused’s may plea guilty to avoid a wrongful conviction and increased sentence risk; and that’s a good thing for society and the innocent accused.

Post-trial issues

May 10, 2009 | The Law Office of Philip D. Cave

We talk a lot about appellate issues and whether they should be raised. Of course in the military we have United States v. Grostefon. There is also talk about changing the post-trial process and possibly placing more responsibility on the trial defense counsel to initially raise appellate issues (a broadening of Palenius). So here is an interesting little case on how a federal district court resolves appellate issues under Anders.

After a jury trial, Jeffery Carter was convicted of distributing crack, see 21 U.S.C. § 841(a)(1), and the district court sentenced him to 180 months in prison. Carter filed a notice of appeal, but his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot discern a nonfrivolous basis for appeal. Because counsel’s supporting brief is adequate, we limit our review to the potential issues identified in counsel’s brief and Carter’s Circuit Rule 51(b) response to his lawyer’s motion to withdraw. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

United States v. Carter, No.08-1419, 2009 U.S. App. LEXIS 9939, at *1 (7th Cir. 2009).

Equally applicable

May 9, 2009 | The Law Office of Philip D. Cave

Andrew Taslitz has a comment on Concurring Opinions today: Government Lawyers’ Ethical Obligations and the War on Terror. This piece could apply equally to trial counsel and staff judge advocates, as well as defense counsel. The comment is about the current call(s) for action against the Bush administration lawyers and torture memos.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent.

Techno-junkies

May 8, 2009 | The Law Office of Philip D. Cave

Been a while since I’ve posted something related to technology and this century. (I should note a red book sighting the other day at NLSO WNY.) Here is an interesting article. Of course those of us with the offending L1 GPS systems are quite aware of running into brick walls or cul-de-sacs due to inaccuracies. But what will the courts do.

Recalculating, Take 5: Is GPS Evidence Too Unreliable To Be Admitted Into Evidence? Professor Colin Miller posts about a number of items about reliability.

In the article, GPS Evidence Too Unreliable For Legal Purposes, Thomas Claburn provocatively opens by noting:

CAAF opinion – Campos

May 8, 2009 | The Law Office of Philip D. Cave

CAAF has issued an opinion in United States v. Campos, __ M.J. ____ (C.A.A.F. 2009). The court was unanimous, although Judge Baker filed a separate concurring opinion.

This is an opinion that essentially discusses the inadmissible evidence thrust down an accused’s throat through a stipulation as part of a pretrial agreement. Basically, if you stipulate, even to inadmissible unreliable evidence you are likely stuck on a waiver theory. Although it does appear in this case that there was no consent to admissibility in the stipulation, just what the testimony would be. So the accused could have objected at trial. But CAAF found a knowing waiver of an objection.

Interestingly the concurring opinion addresses the most troubling issue in the case. The stipulated testimony of an expert, who’d not evaluated the accused, included a sentence recommendation which is verboten under United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989). Judge Baker resolved his qualms on the legal fiction that the sentence and the recommended sentence must have been serendipitous, because judge’s are presumed to know and apply the law correctly.

Up periscope

May 8, 2009 | The Law Office of Philip D. Cave

FLETC’s The Informer is out for this month. In addition to commentary on Ventris and Gant, here are a couple of summaries of two computer search cases.

10th CIRCUIT United States v. Otero, 2009 U.S. App. LEXIS 9001, April 28, 2009.

The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and accordingly makes the Fourth Amendment particularity requirement that much more important. A warrant authorizing a search of “any and all information and/or data” stored on a computer is the sort of wide-ranging search that fails to satisfy the particularity requirement. Warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.

Gilding the lily

May 8, 2009 | The Law Office of Philip D. Cave

In some, non-U.S., police circles it’s called gilding the lily. But you are not supposed to get caught.

Officer Investigated For Perjury After DUI Case Falls Apart, By Dan Morse, Washington Post, 7 May 2009.

Although gilding the lily is really more subtle than this. It’s those oft remembered micro-facts months after the case, arrest, interrogation, etc.

Ethics and blogging

May 7, 2009 | The Law Office of Philip D. Cave

Here is a fascinating article and it references CAAFLog.

Lee has concerns about the potential for bloggers to impact the outcome of a case. She even suggests that advocates may go so far as to "game" a case, by writing publicly about it in a blog to spur the Court to grant cert or rule a particular way. Because Lee believes that bloggers could impact the outcome of a case, she argues that the legal profession should consider regulating ex parte blogging, despite the positive benefits — e.g., discovery of errors and stimulating public debate — that blogging brings to the table.

This comes from several sources, but see, “Do we need ethics rules on ex-parte blogging?” on Legal Blog Watch.

Irrelevant inadmissible testimony

May 7, 2009 | The Law Office of Philip D. Cave

I frequently find myself objecting to or submitting in-limine motions about law enforcement testimony on how they got involved in the investigation. That testimony usually has a lengthy recitation that includes inadmissible hearsay from people, alleged victims, alleged co-accuseds, other law enforcement personnel. You have multiple hearsay, 401, and 403 objections.

Here’s how the state of Maryland recently dealt with this issue and it’s instructive.

Parker v. State.