Appellate process could use improvement….

indley on Innocence Protection in the Appellate Process

Keith A. Findley (University of Wisconsin Law School) has posted Innocence Protection in the Appellate Process (Marquette Law Review, Forthcoming) on SSRN. Here is the abstract:
It is often said that truth “accurate sorting of the guilty from the innocent” is the primary objective of criminal trials. Among the important safeguards in our criminal justice system intended to ensure that the innocent are protected from wrongful conviction is the system of appeals and postconviction remedies. Recent empirical evidence based on DNA exoneration cases reveals, however, that the appellate process does not do a good job of recognizing or protecting innocence. Examination of known innocents “those proved innocent by postconviction DNA testing” shows that they have rarely obtained relief on appeal. Moreover, those individuals subsequently proved innocent by postconviction DNA testing do no better on appeal and their innocence is no more regularly acknowledged than otherwise similarly situated individuals who have not been exonerated by DNA. This article examines the variety of reasons why the appellate system fails to effectively guard against wrongful conviction of the innocent, and considers possible reforms that might enhance the system’s innocence-protecting functions.

Eating away…..

Fourth Amendment news–“House votes to expand national DNA arrest database”

House votes to expand national DNA arrest database by Declan McCullagh on CNET News:

Millions of Americans arrested for but not convicted of crimes will likely have their DNA forcibly extracted and added to a national database, according to a bill approved by the U.S. House of Representatives on Tuesday.

By a 357 to 32 vote, the House approved legislation that will pay state governments to require DNA samples, which could mean drawing blood with a needle, from adults “arrested for” certain serious crimes. Not one Democrat voted against the database measure, which would hand out about $75 million to states that agree to make such testing mandatory.

Murder conviction reversed …..Thomas C. Brandstrader, attorney at law

Murder conviction reversed because of lapse in time

By Pat Milhizer
Law Bulletin staff writer

In a case that features the longest time lapse between a crime and witness identification in Illinois, a state appeals panel reversed a man’s murder conviction Tuesday mainly because the eyewitnesses didn’t identify the alleged gunman until more than 30 years after the shooting.

“The Appellate Court took the standard of evidence and held it dear,” said Thomas C. Brandstrader, a sole practitioner who represented the defendant. “They held it to what it should be, and that’s beyond a reasonable doubt.”

In 1971, Flores Sanchez was killed and Gilberto Cruz was wounded by gunshots that were fired in a Chicago bar.

Police identified Luis Vega as a suspect, but a detective couldn’t find him at home. Vega also didn’t report to work on the Monday after the shooting.

The cold case got warm in 2004, when authorities found Vega in New York after he applied for retirement benefits. An agent with the Social Security Administration who reviewed the application noticed that Vega had an outstanding arrest warrant.

A Chicago police detective went to New York and reported that Vega said his memory of 1971 was “fuzzy.” The detective said he asked Vega if he killed Sanchez, and Vega replied that if he did, he didn’t remember doing it.

Vega was arrested in 2005 and brought back to Chicago, where he opted for a bench trial. The prosecution presented two witnesses with a photo of Vega that was taken in 1961, a decade before the crime.

Both Cruz and the bartender who saw the shooting identified Vega as the killer from the photo. But neither of the witnesses testified that they identified Vega as the shooter in 1971.

A New York detective testified and said at the time of arrest Vega said he “understood what was happening and had made peace with God,” according to the appellate opinion.

Cook County Circuit Judge Kenneth J. Wadas found Vega guilty, saying the two eyewitnesses and the New York detective were credible. The judge also found that Vega was “spontaneous” in his statements to the New York detective, which constituted a confession.

Because Illinois had indeterminate sentencing at the time of the crime, Wadas sentenced Vega to between 14 and 20 years for murder and six and 18 years for attempted murder.

Vega appealed, contending that he wasn’t proved guilty beyond a reasonable doubt because the witness identifications were unreliable. He also argued that the state’s circumstantial evidence failed to connect him to the shooting.

The 1st District Appellate Court agreed and reversed the murder conviction in a 12-page unpublished order written by Justice Mary Jane Theis. Justices Joy V. Cunningham and Themis N. Karnezis concurred.

The panel held that even though the length of time between a crime and an identification doesn’t necessarily render the identification untrustworthy, it does affect the weight that should be given to the identification. In the 1972 decision in Neil v. Biggers, the U.S. Supreme Court held that a lapse of seven months would be “a seriously negative factor in most cases.”

“Thus, a 34-year lapse in time must be weighed and considered exponentially less reliable,” Theis wrote.

It is also “highly significant” that neither Cruz nor the bartender testified that they gave a description of Vega to police in 1971, the panel ruled.

The prosecution maintained that the fact that Chicago police initially began looking for Vega indicates that Cruz and the bartender must have identified Vega as the shooter. But it would have constituted inadmissible hearsay if the Chicago detective who started the investigation in 1971 was allowed to testify that his interview with a witness led to the warrant being issued, the panel held.

The panel also pointed out that the two witnesses didn’t testify about the level of certainty that they had with their identification of Vega.

And neither witness identified Vega in court, the panel noted. Instead, they relied on a photo that was taken 10 years before the crime.

The panel also noted that there was no physical evidence linking Vega to the shooting. Furthermore, Vega’s statement that he had “made peace with God” didn’t qualify as a confession, the panel ruled.

As for Vega’s decision to leave Chicago, the panel cited case law stating that “flight alone is not necessarily indicative of criminal activity. … It must be considered in connection with all of the other evidence.”

The state was represented by former prosecutor James E. Fitzgerald and Assistant State’s Attorneys Samuel Shim and Michele I. Lavin. The office will ask the Illinois Supreme Court to hear the case.

For the defense, Brandstrader was assisted by attorney Augustus F. Moss.

The case is People v. Luis Vega, No. 1-08-1532.

Good article on Miranda (and why Obama should leave it alone)…

You Have the Right to Remain Constitutional
Published: May 12, 2010

SINCE its adoption after a landmark 1966 Supreme Court decision, the Miranda warning has worked its way into not only everyday police procedure, but American culture as well — even if you’ve never been arrested, you probably know the words “anything you say can and will be used against you.”

Times Topic: Miranda Warnings
But as the Obama administration considers carving out an exception to the Miranda rules for terrorism suspects in the wake of the arrest of Faisal Shahzad, the Connecticut man accused of being the Times Square bomber, it’s important to note how little most people understand what Miranda does and doesn’t mean.

First and foremost, the failure to give a Miranda warning does not result in a case being dismissed. It only results in the inability of the police to use a confession and its fruits in evidence. Indeed, the overwhelming majority of successful criminal prosecutions do not involve confessions.

The warning’s genesis lies in the Fifth Amendment, which says that the government may not compel a person “in any criminal case to be a witness against himself.” The framers knew how easy it was to obtain a confession through torture or other forms of overt coercion, and how tempting it was for a government to use such tactics. To prohibit this kind of abuse, the founders said, in effect, that a person could not be forced to confess.

The problem was trying to determine what counted as a coerced confession. Well into the 20th century, police officers would beat suspects, or keep defendants in isolation for days, to get a confession. The methods of police interrogation were so diverse, and the effects of isolation, intimidation and defendant ignorance so varied, that appellate courts found it difficult to determine afterward whether a confession had been truly voluntary.

Finally, in 1966, the Miranda decision established a universal standard, requiring people in police custody to be read their rights before being questioned. Under most circumstances, failure to comply with this rule would lead to a suppression of the confession.

However, contrary to common belief, the Miranda warning doesn’t confer rights; it simply reminds arrestees of the rights already granted to them by the Constitution. Moreover, talk-show hosts and television police dramas have led people to believe that before the police may interrogate or arrest a suspect, the Miranda warning must be given. That just isn’t the case. Neither arrest alone nor interrogation alone (if there has been no arrest) requires the warning to be given. Miranda applies only to in-custody questioning; a statement made to the police by a suspect not in custody is not subject to Miranda.

Still, many supporters of Miranda exclusions argue that the rule hamstrings law enforcement. This is wrong, too.

When Miranda was decided, I was a young lawyer who had served in the military police and was chairman of the Committee on Public Safety of the Nassau County Board of Supervisors — in short, law enforcement was a big part of my life. I, along with members of the county police force, the prosecutor’s office and others in the law enforcement community, was frightened by the decision. Would arresting officers ever remember to read the entire warning? We envisioned wily defense lawyers using Miranda to suppress a confession, often the strongest foundation on which to build a conviction.

Over time, however, police compliance became second nature, and the warning has become a routine part of post-arrest interrogation. Today, judges only rarely suppress confessions because the warning wasn’t given, and acquittals on the basis of such a suppression are even rarer. In fact, because it clarifies more than inhibits the arrest and interrogation process, law enforcement agencies nationwide support Miranda.

The truth is, we may have even reached the point where defendants are so familiar with the warning that they forget its meaning; indeed, the penal system is filled with prisoners who confessed or incriminated themselves despite having been read their rights.

This doesn’t mean that Miranda is irrelevant, or that there isn’t a place for exceptions. In 1982, while I was a judge on New York’s highest court, the Court of Appeals, we heard a case in which a man was said to have entered a supermarket with a loaded gun. When the police detained the man, they found him wearing an empty holster, and they asked him the whereabouts of the weapon. After he showed the police where he had hidden the gun, he was arrested and charged with criminal possession of a weapon.

The lower courts held that he should have been given his Miranda warning before being asked the location of the gun. I wrote an opinion, later embraced by the Supreme Court, that created an “emergency exception” to Miranda, allowing the police to defuse a dangerous situation before administering the warning.

But resolving immediate emergencies is about as far as we should go in delaying the Miranda reading or creating exceptions to it. To open non-emergency exceptions, like the one proposed by the Obama administration for terrorism suspects, would be to go down a road toward the eventual nullification of the constitutional protection against self-incrimination.

The Miranda rule strikes a delicate balance, enabling us to protect a fundamental constitutional right without forcing the courts to allow the legitimacy of every confession to be proven before it is allowed into evidence. To compromise the rule would be counterproductive and destructive to the kind of freedom we enjoy as Americans — a freedom that terrorists would like nothing better than to destroy.

Sol Wachtler is a professor of constitutional law at Touro Law School and former chief judge of the New York Court of Appeals.

Judicial Conflict?

Clarence Thomas’ Wife Joins Tea Party

Virginia Thomas is no ordinary activist. In fact, she’s the wife of Supreme Court Justice Clarence Thomas and she has founded a Tea Party-linked group, which could stretch the court’s traditional sense of impartiality. Thomas’ new group is called Liberty Central Inc. It’s a nonprofit lobbying group set to issue score cards for Congress members during the November election. The group and work doesn’t violate ethical rules for judges, but it could potentially be grounds for conflict of interest for her husband. Liberty Central may be a nonpartisan group, but it leans toward conservative principles and its nonprofit title allows it to raise unlimited amounts of corporate money without disclosing its donors. The group is set to launch fully in May.