A court in Brooklyn has deemed inadmissible MRI evidence of the truthfulness of a witness in an employment discrimination case. The details are sketchy but it sounds like the evidence was declined on the ground that credibility is a jury determination. Apparently, the court did not consider the scientific merits or demerits of the technology. See Wired story here (and an earlier story here). We will soon learn more about how courts handle such evidence in an upcoming criminal case. The issues raised may be especially interesting in the criminal context where defendants have certain constitutional interests in presenting exculpatory evidence. As I have argued informally and as Fred Schauer has argued in print (“Neuroscience, lie-detection and the law,” Trends in Cognitive Sciences, 2010), the strength of evidence we’d like to have to support a tort claim is different than the strength of evidence we need to raise a reasonable doubt in a criminal case. Here’s what we know about the case from the Wired article:
Wired.com has learned that more brain scans conducted by the company Cephos will be put to the legal test in a federal case in the western district of Tennessee. On May 13, that court will hear arguments over MRI evidence in a Daubert hearing, the procedure used to assess the admissibility of scientific information in Federal court.
In that case, the U.S. attorney charges that Lorne Semrau, a psychiatrist, sought to defraud Medicare and Medicaid in the way he contracted and billed for his services. Semrau argues he had no intent to defraud the government and underwent a brain scan to prove it. His attorney, J. Houston Gordon, filed paperwork indicating that Stephen Laken, president of Cephos, would testify on the MRI evidence the company obtained. “Dr. Laken will further testify that Dr. Semrau was presented questions using MRI technology and was instructed to respond to questions in either/both a truthful or deceitful manner, depending on the question posed,” Gordon wrote. “The MRI screening demonstrated to a scientific certainty, that Defendant was truthful and possessed no intent to defraud or cheat the government.”
Author: tcbdefense
The Exclusionary Rule…
Robert M. Bloom (pictured) and David H. Fentin (Boston College – Law School and Boston College) have posted ‘A More Majestic Conception:’ The Importance of Judicial Integrity in Preserving the Exclusionary Rule (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:
In Mapp v. Ohio (1961), the Warren Court held that the so-called exclusionary rule was applicable to the states. Subsequent Supreme Courts have shown their disenchantment with the rule by seeking to curb its applicability. Most recently, the Court has characterized the exclusionary rule as a “massive remedy” to be applied only as a “last resort.” The Courts’ analytical framework for the last thirty-five years for cutting back the exclusionary rule was a balancing test which weighed the costs of suppressing reliable evidence with the benefits of deterring future police violations.
This balancing has been used most recently in two Supreme Court cases, Michigan v. Hudson (2006) and Herring v. United States (2009). In Herring, Justice Ginsberg’s dissent pointed out that there was a “more majestic conception” for the exclusionary rule due to its important role in preserving judicial integrity. Judicial integrity was the original reason for adopting the exclusionary rule in the Supreme Court case of Weeks v. United States (1914). The Court in Weeks saw the exclusionary rule as a remedy that would give meaning to the Fourth Amendment as well as prevent the Court from participating in an illegality by utilizing unlawfully obtained evidence. Through balancing, the Court has eviscerated the relevance of judicial integrity as the original justification for the exclusionary rule. This article will demonstrate that the exclusionary rule is the only viable remedy to give meaning to the Fourth Amendment, and argues that the exclusionary rule be returned to its previous prominence by reinstating judicial integrity as its primary purpose.
Sacramento Bee investigates jails….
Helping Prisoners
Part I of an interesting investigative piece focused on California prisons appear in today’sSacramento Bee.
A Bee investigation into the behavior units, including signed affidavits, conversations and correspondence with 18 inmates, has uncovered evidence of racism and cruelty at the High Desert facility. Inmates described hours-long strip-searches in a snow-covered exercise yard. They said correctional officers tried to provoke attacks between inmates, spread human excrement on cell doors and roughed up those who peacefully resisted mistreatment.
Many of their claims were backed by legal and administrative filings, and signed affidavits, which together depicted an environment of brutality, corruption and fear.
Behavior units at other prisons were marked by extreme isolation and deprivation – long periods in a cell without education, social contact, TV or radio, according to inmate complaints and recent visits by The Bee. An inmate of the Salinas Valley State Prison behavior unit won a lawsuit last year to get regular access to the prison yard after five months without exercise, sunlight or fresh air.
State prison officials have known about many of these claims since at least July 2008, when Department of Corrections and Rehabilitation social scientists sent to High Desert to assess the program reported allegations of abuse – including denial of medical care, racial slurs, gratuitous violence and destruction of protest appeals.
The Bee’s investigation also revealed a broad effort by corrections officials to hide the concerns of prisoners and of the department’s own experts. Their final report, released only after The Bee requested it in April, downplayed the abuses.
May 9, 2010 | Permalink
Go to this site but be careful in doing what it suggests….
Summer in France…..
Remember Manuel Noriega? The former Panamanian dictator is back in the
headlines again: The U.S. reportedly extradited the disgraced leader
from his federal prison just outside Miami to France, via an overnight
Air France flight, as he prepares to stand trial there on money
laundering charges. The French claim he laundered around $3 million in
drug proceeds through luxury apartment purchases in Paris and could face
up to 10 years in prison if convicted. Meanwhile, Secretary of State
Hillary Clinton signed a surrender warrant for Noriega after all court
challenges to his extradition were resolved. Noriega was dethroned as
Panama’s leader after a 1989 U.S. military invasion and put on trial for
drug racketeering.
He didn’t laugh at lawyer jokes
He didn’t laugh at lawyer jokes
By Peter S. Stamatis
Last month, this column lamented the current state of American politics, a blood-sport that seems to attract mostly people who are not qualified for positions of public trust, characters oftentimes more interested in celebrity or power rather than self-sacrifice and service.
When the wrong people, again and again, are put into leadership positions and make the decisions and policies the rest of us are bound to live by, bad things inevitably happen — taxes go up to pay for pet projects used to ensure re-election; kickbacks are paid; bribes are accepted; contracts are rigged; nepotism becomes the norm; etc.
In other words, it’s garbage in, garbage out. So it’s no surprise that politicians today enjoy some of the lowest approval ratings ever. This week alone, RealClearPolitics.com, which averages the country’s major political polls, showed a national congressional disapproval rating of just over 76 percent.
So what really are the effects of, time and time again, putting the wrong people into such important positions? Generally speaking, it is the consistent directing of our society towards its fall.
Merely by way of example, consider for a moment our nation’s financial mess. With the exception of several years during the Clinton administration (Democrat President, Republican Congress), our elected officials have consistently spent more than they have taken in each year. And those deficits have added, year after year, to the national debt, a number which currently sits just shy of $13 trillion, a staggering and incomprehensible figure. How long can we go on like this?
Another way our society is harmed is through relentless swipes at the legal profession. We have all heard these people claim again and again, and in one lame platitude after another, how lawyers are a scourge upon our society. In recent years, lawyers have been blamed for everything from doctors leaving the practice of medicine, to excessive insurance premiums, to high jury verdicts (as if the defendants who have been ordered to pay them were unrepresented and blameless victims). One of the more popular and offensive canards is that lawyers clog our courts day in day out with “frivolous lawsuits.” Is a “frivolous lawsuit practice” really a popular and profitable business model?
All too often, we lawyers stand by and allow these prevarications to be emitted into the public consciousness. And while it certainly harms our reputations, it harms our nation’s legal system even more, the indispensable place where over disputes are peacefully resolved. Our inaction amounts to what Cicero called in his “De Officiis, On Moral Duties,” the great fault of “passive injustice,” remaining silent because of our own interests or inattention.
So we shrug off lawyer jokes when what we should be doing is getting more involved, using our skills and training to boil down problems and direct our fellow-citizens towards solutions. I recently heard one caller on a talk show say that lawyers were the “problem” with government, that because we bill by the hour, we have been trained to perpetuate problems, not to solve them. A ridiculous statement to which no one responded.
So it’s time to step it up. We should treat over-reaching attacks upon attorneys as what they are, attacks upon our judicial system. Consider the late Francis A. Nolan. I had the privilege, for a time, to be Frank’s mentee. He was one of the best criminal trial attorneys to grace the courtrooms of Illinois. A former Cook County state’s attorney and the son of a courtroom clerk in Brooklyn, Frank was the gentleman’s gentleman. He was eloquent in a 1940s sort of way; he cared about his clients and he loved, I mean loved, our profession.
Frank wasn’t a litigator — he was a trial lawyer. And boy, he was as brilliant at it as he was proud of it. He tried more cases than he could count. He could pick a jury, deliver an opening statement, conduct direct and cross examinations, and then close like no one else. Clients and their families came to him when they were in trouble, real trouble. And he gave them comfort and then he gave it his all. He cared for his clients in a way that showed only the utmost esteem for our profession.
Frank never laughed at lawyer jokes. He didn’t think they were funny, but even more so, he didn’t want to dignify them. Frank used to talk about how after he was diagnosed with Hodgkin’s lymphoma, the lawyers in his life answered the call. When he was undergoing chemo and radiation therapies and was too tired to work and said he “looked like something from outer space,” he proudly told me about how his landlords, lawyers mind you, waived his rent; and how his friends, lawyers as well, not only covered his cases and court appearances, but continued referring him cases, kept him in the loop, took control of the wheel when he couldn’t. “Lawyers are some of the best people I know. I love being a lawyer. I’m proud to be a lawyer.” He said these kinds of things over and over.
So what about us? Should we lawyers continue to remain quiet pawns to the self-serving ends of others? Should we continue to allow politicians to transform the term “trial lawyer” into an epithet, as if lawyers who try cases are the cause of society’s ills? On the contrary, perhaps we should follow Frank’s example and remember what a privilege it is to be a lawyer, to eschew mocking it and to respond when an unjustified criticism is launched.
After all, as the judicial systems’ caretakers, isn’t it our job to protect it?
Cyber crime….
The Minneapolis Star Tribune:
William Melchert-Dinkel, 47 …. was charged … with two counts of aiding suicide…. [He] allegedly used Internet correspondence to prod [two people] into killing themselves…. Like most other states, Minnesota has a law that punishes anyone who “intentionally advises, encourages, or assists” others with suicide….
According to authorities, Melchert-Dinkel advised and encouraged Mark Drybrough, 32, of Britain, and Nadia Kajouji, 18, of Ottawa, before they took their own lives….
Melchert-Dinkel used online aliases “Li Dao” and “Falcon Girl” and presented himself as an expert in suicide techniques.
He suggested to others in the chat rooms that he could die at the same time they did, and he twice watched through his webcam as they took their own lives….
Illinois Appeals & Post Convictions 
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