He did what he was trained to do….

Chicago Detective charged in fatal off-duty shooting

By Stacy St. Clair and Jeremy Gorner

Tribune reporters 9:31 a.m. CST, November 25, 2013

In a rare move, Cook County prosecutors charged a Chicago police detective with involuntary manslaughter today for an off-duty shooting in which he killed an unarmed woman.

Detective Dante Servin, 40, becomes only the second officer since 1997 to be charged in connection with a shooting. He was also charged with reckless discharge of a firearm and reckless conduct, and  is expected in bond court later today.

Servin, who joined the department in 1994, has cooperated with investigators and met with prosecutors at his home in January to walk them through his version of events, his criminal defense attorney Thomas Brandstrader said.

Read More Here:


Interesting concept…..

Miller on Allowing Defendants to Present Evidence They Rejected Favorable Plea Bargains

Colin Miller (John Marshall Law School) has posted Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains. Here is the abstract:
Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions…” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence.

This article addresses the question of whether courts can consistently allow prosecutors to present defendants’ incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains. It concludes that courts cannot prevent defendants from presenting evidence that they rejected favorable plea bargains based upon Mezzanatto and that none of the arguments against admissibility hold water.
August 23, 2010 | Permalink

False Confessions

The Substance of False Confessions
Brandon Garrett -University of Virginia School of Law

Posted in Confessions, Criminal Procedure, DNA, Police

The scholarship of interrogations has taken a turn from procedure to substance. The Supreme Court’s landmark criminal procedure rulings regulating modern psychological interrogations remain static, inviting lingering decades-long debates over whether the Court correctly decided decisions such as Miranda. Meanwhile, psychologists increasingly study not the legal regulation of interrogations, but police practices inside the interrogation room. Saul Kassin, Gisli Gudjonsson, Richard Ofshe, Richard Leo, and many others have shed light, through landmark experimental and empirical work, on how modern psychological interrogation techniques can generate false confessions. The American Psychology and Law Association released a White Paper on the subject, surveying the literature and recommending a series of changes to interrogation procedures.2 Doing so shed light on the phenomenon of confession contamination. Police may, intentionally or unintentionally, prompt the suspect on how the crime happened. Yet false confessions do not happen simply by happenstance. They are carefully constructed during an interrogation and then reconstructed during any criminal trial that follows. Constitutional criminal procedure does not regulate this critical phase of an interrogation. The Constitution requires that the ubiquitous Miranda warnings be provided and that the bare admission of guilt have been made voluntarily under the totality of the circumstances. That admission of guilt, while important, is only a part of the interrogation process. After the bare admission of guilt, police conduct a lengthy “confession-making” phase. Much of the power of a confession derives from the lengthy narrative that follows. For a person to confess in a convincing way, he must be able to say much more than “I did it.” The confession narrative not only plays an important role in fleshing out the suspect’s motive and culpability, but properly used, it can be used to test the accuracy of the confession. Police are trained to evaluate the suspect’s knowledge of how the crime occurred, by asking open-ended questions to assess whether the suspect can freely volunteer specific details that only the true culprit could know.

The false confessions in DNA cases all involved very long interrogations, and most involved vulnerable juveniles or mentally disabled individuals. In all cases but one (95% or 36 of the 38 exonerees for whom trial or pre-trial records could be obtained) police reported that suspects confessed to a series of specific details concerning how the crime occurred. As the prosecutor in Robert Miller’s case briefly put it, “He supplied detail after detail after detail after detail. And details that only but the killer could have known.”3 The non-public facts contained in confession statements then became the centerpiece of the State’s case. Although defense counsel moved to exclude almost all of these confessions from the trial, courts found each to be voluntary and admissible, often citing to the apparent reliability of the confessions. The facts were typically the focus of the State’s closing arguments to the jury. Even after DNA testing excluded these people, courts sometimes initially denied relief, citing to the seeming reliability of these confessions. For example, Nathaniel Hatchett had been excluded by DNA testing at the time of trial, but postconviction, the court concluded that “the prosecution presented overwhelming evidence” where the “defendant’s statement included information that only the perpetrator of the crimes would know.”4 The ironic result is that the public learned about these false confessions in part because of the contaminated facts. These false confessions were so persuasive, detailed, and believable that they resulted in convictions upheld during appeals and habeas review. After years passed, and appeals and habeas petitions were all denied and dismissed, these convicts had no option left but to seek the DNA testing that finally proved their confessions false.

False confessions uncovered by DNA testing are almost certainly not representative of other false confessions, much less confessions more generally. The 40 cases examined, consisting chiefly of confessions to 1980’s rape-murders, cannot speak to how often people confess falsely. While unusual, only in such examples of known false confessions can one assess whether detailed or supposedly non-public facts contaminated a confession. These data provide a set of examples of a very troubling problem that deserves further study.

One reason why these examples are important is that courts, lawmakers, and executives, while perhaps increasingly aware that false confessions can occur, continue to ignore that there is even a possibility that false confessions may appear uncannily reliable precisely because of the insidious problem of confession contamination. Justice Alito, concurring in U.S. Supreme Court in District Attorney’s Association v. Osborne, noted that “[a]fter conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime.”5 Of course, if it is true that Osborne is innocent, he certainly could have known the details of his case. His “confession” to the parole board was by definition contaminated because he could very easily admit guilt “in detail” based on the victim’s account of the crime that he heard at his own trial. In one additional recent example, Virginia’s Governor granted a conditional but not full pardon in the “Norfolk Four” case, despite DNA exclusions, citing to the “cumulative power” of confession statements, but never acknowledging that the statements could have been contaminated.7 The problem of contamination is thus not limited to the accuracy of the crime narrative, but also extends to the interrogation room shaping of mens rea and of defenses that the suspect might otherwise rely upon. We should look more carefully at the substance of scripts used by police interrogators and the substance of statements by suspects regarding defenses and mens rea, and not just crime details.

Perhaps the prolonged involvement of law enforcement in generating a confession, true or false, should itself raise concerns about possible contamination. Barry Feld’s work reviewing recorded juvenile interrogations in Minnesota suggests that the typical interrogation of a suspect lasts much less than an hour, and not hours, and without prolonged questioning, elaborate ruses, or schemes designed to produce coercion. Rather, in those interrogations of juveniles, many of which produced confession statements, police used open-ended questioning designed to elicit a narrative, together with questions designed to directly confront them with an accusation that they committed the crime or accusing them of lying. Other studies suggest that the vast majority of interrogations, even in more serious cases, are fairly short and benign. Feld asks us to consider, “Are confronting suspects with false evidence and lying during interrogation necessary evils?”8 The over-the-top and elaborate psychological techniques used in lengthy interrogations described in police manuals and used in many of these DNA exonerees’ harrowing interrogations may not be the norm. Perhaps such lengthy interrogations are needed in certain difficult and serious cases. However, scholars are right to increasingly scrutinize lengthy interrogations using complex confession-making tactics—particularly if the ornate storytelling, narrative formation, fabrication, deception, threats, psychological manipulation, and the like occurs in darkness, absent any electronic recording.

A series of reforms could reorient our criminal system towards the substance of confessions. First, although constitutional criminal procedure could regulate reliability, such constitutional change is unlikely. However, an understanding of the vulnerability of confessions to contamination can also inform courts reviewing trials postconviction, particularly in cases involving persons vulnerable to suggestion, such as juveniles and mentally disabled individuals. Second, unless interrogations are recorded in their entirety, courts may not be aware of what transpired during the confession-making process, much less detect contamination of facts, especially when no DNA testing can be performed. In recent years there has been a concerted movement towards reform. In response to some of these false confessions, state legislatures, police departments, and courts have increasingly required videotaping of entire interrogations. Third, additional police procedures can safeguard reliability, such as procedures intended to assure against contamination, to assess suggestibility of vulnerable suspects, and to avoid coercion postadmission.

Contamination of confessions is to a great degree preventable, and the remedy involves making interrogations less secretive. The remedy—electronic recording combined with reliability review—may produce benefits to law enforcement and to society beyond detecting errors. The Supreme Court complained in Miranda, “Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.”9 Recording will help to close that gap in our knowledge about interrogation practices. In most cases, police will document professional, brief, accurate, and unprompted confessions. However, recording and review will also help to identify the hopefully dwindling number of contaminated false confessions, which before the advent of DNA technology had remained shrouded in secrecy and darkness. Sunlight in the interrogation room will bring interrogation practices out into the open, so that we can better understand and evaluate them. That shift towards reviewing the substance of confessions has the potential to enhance confidence in both the accuracy and legitimacy of the criminal process.


Copyright © 2010 Stanford Law Review.

Brandon L. Garrett is an Associate Professor of Law at the University of Virginia School of Law.

Maybe someone is listening….

PHILADELPHIA — The new district attorney in violence-weary Philadelphia had vowed not to get tough on crime but to get “smart on crime.” This month, R. Seth Williams began to make good on his word, downgrading penalties for possessing small amounts of marijuana from jail time to community service and fines.

It was an easy decision, said Mr. Williams, who took office in January promising changes that would reduce prosecutions but increase the conviction rate. Now he also spends hours each week visiting schools, exhorting students to graduate.

Philadelphia, after being battered for years by the worst sort of superlatives — the highest murder rate, the lowest conviction rate — seems ready to give Mr. Williams and his ideas a chance.

“This is like a breath of fresh air,” said Ellen Greenlee, chief of the city’s public defenders, who described the previous district attorney’s approach to charging suspects as “throw everything against the wall and see what sticks.”

Mr. Williams, the first black district attorney in the history of Pennsylvania, is a 10-year veteran of the office he is now shaking up. He looks younger than his 43 years and is happy for junior staff members to call him Seth.

In private and public appearances, Mr. Williams repeats practiced lines from a justice-reform movement that has taken hold in places like New York, San Diego and San Francisco and promotes, for lesser offenders, community courts and drug treatment rather than trial and prison.

“Crime prevention is more important than crime prosecution,” he said repeatedly last week as he rode from one event to another. “We need to be smarter on crime instead of just talking tough.”

“I’ve put my money where my mouth is,” he added in an interview, by redirecting his overstretched resources toward a more careful selection of cases and starting a computerized study of prosecutions to see why they so often fail.

But the real test of public support for Mr. Williams’s new directions, Ms. Greenlee and other legal experts said, may come if there is a surge in high-profile killings or the killing of a police officer by a repeat offender. Violent crime has fallen here in recent years, but of the 10 largest cities in 2009, Philadelphia still had the highest murder rate.

“We need to focus on the people who are shooting people,” Mr. Williams said of the newly lenient penalties for marijuana. Senior court officials said the shift would avoid 4,000 costly trials a year.

The only public condemnation came from Mr. Williams’s predecessor, Lynne M. Abraham, who during 18 years as district attorney sounded an increasingly hard line on crime. Ms. Abraham criticized the new marijuana policy, saying that “the drug cartels who import pot from Mexico are thrilled.”

While the drug shift caught the public eye, legal experts said the changes Mr. Williams was making, especially in the unit that decides what charges to file against those who are arrested, are far more important.

Previously, the charging unit included five lawyers, usually junior lawyers who were encouraged to file the widest and harshest charges they could, Mr. Williams said. Now the unit has 18 more experienced lawyers, who spend time considering what charges can realistically succeed. The office is also offering plea bargains earlier in the process, again to clear the courts for more serious cases.

“The new D.A. is one part of a sea change that is occurring in criminal justice in Philadelphia,” said Seamus P. McCaffery, a State Supreme Court justice.

The drive to streamline the justice system became easier, Mr. Williams and Justice McCaffery said, after an investigative series by The Philadelphia Inquirer last December found that the city had failed to obtain convictions in two-thirds of cases involving violent crimes, and that thousands of cases were dismissed because prosecutors were not prepared or witnesses did not appear.

Ms. Abraham, the former district attorney, who is now in private practice, called the articles misleading and said it was wrong to “do justice by the numbers.”

On one recent morning, Mr. Williams spoke to loud applause at the high school graduation at Freire Charter School.

“Why am I spending time here?” he asked. “Of the 75,000 people arrested each year for crimes in Philadelphia, what is the one thing they have in common? They didn’t graduate from high school.”

He described his own origins, saying they could easily have left him a street thug. When he was born in 1967, he went from the hospital to an orphanage; he does not know anything about his biological mother and said he was not interested in learning.

He spent time in two foster homes before being adopted, at 18 months old, by a middle-class black couple whom he credits with instilling a sense of civic duty. His father was a schoolteacher who also worked evenings at a recreation center, and his mother was a secretary.

As he congratulated the graduating seniors, he told them about a personal failure: He got into West Point, but had to leave in his first year when he failed math and chemistry.

He switched to Pennsylvania State University, where he was elected head of the Black Caucus and then the student government. He attended Georgetown Law School and started as an assistant district attorney under Ms. Abraham. Chafing at what he saw as a dysfunctional system, he resigned to run against her, unsuccessfully, in 2005.

The Philadelphia district attorney’s office was a stepping stone for the likes of Senator Arlen Specter and Gov. Edward G. Rendell, but Mr. Williams declined to speculate about his future.

Eugene J. Richardson Jr., one of the legendary Tuskegee airmen of World War II and a retired school principal, said he hoped the changes sought by Mr. Williams would pan out, adding, “So often the new broom comes in and then gets stuck in a corner.”

Stolen property….

Green on Possession of Stolen Property

Stuart P. Green (Rutgers Law School-Newark) has posted Thieving and Receiving: (Over)Criminalizing the Possession of Stolen Property (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

Historically, Anglo-American law has treated the offense of receiving stolen property in a surprisingly diverse number of ways, including treating it as no crime at all, subjecting it to accessory-after- the-fact liability, and treating it as a free-standing offense, subject, depending on the jurisdiction, to less punishment than theft, the same punishment as theft, and greater punishment than theft. In order to develop an analytical framework for determining which of these various approaches makes the most sense, we need to ask exactly what receiving statutes are meant to censure and deter. From a backward-looking perspective, receivers can be said to perpetuate the wrongful deprivation of the victim owner’s property rights, effected in the first instance by the thief. From a forward-looking perspective, the act of receiving can, at least in some cases, be said to encourage the commission of future thefts by helping to create a ready market for stolen goods. The problem is that the offense in its current statutory formulation reflects only the backward-looking perspective, requiring nothing more than that the offender possess or receive stolen property (knowing that it is stolen), and saying nothing about the future effects of his act. And because perpetuating an owner’s loss of property is a lesser wrong than causing him to lose his property to begin with (or so it will be argued), the receiver deserves less blame and punishment than the thief. In order to avoid such disproportionality in punishment, various reforms in the law of receiving are recommended.
June 17, 2010 | Permalink

Another reason to stay out of Arizona…

“Governor Rebuffs Clemency Board in Murder Case”

Adam Liptak’s column in the New York Times is here. In part:

Mr. Kempfert is now certain that his father, William Macumber, is innocent. Arizona’s clemency board, citing Mr. Kempfert’s “very moving testimony” and saying there had been “a miscarriage of justice,” unanimously recommended last year that Mr. Macumber be freed. But Mr. Macumber remains in prison, and Gov. Jan Brewer has refused to explain why.

Right to silence…

Dov Fox has posted The Right to Silence Protects Mental Control (LAW AND NEUROSCIENCE, CURRENT LEGAL ISSUES, Vol. 13, M. Freeman, ed., Oxford University Press, 2010) on SSRN. Here is the abstract:
This chapter argues that a right of mental control prohibits the state either from extracting a suspect’s thoughts without her meaningful consent or from making use of a suspect’s compelled recall or recognition to lay criminal blame upon her. Existing accounts of the constitutional privilege against self-incrimination are ill-equipped to address the doctrinal implications of safe and reliable forensic neuroscience. Brain imaging is importantly different, for Fifth Amendment purposes, from all other forms of evidence, because it enables state officials to obtain information directly from a suspect’s brain, in a way that affords her no opportunity to control the transmission of that information. The physical/testimonial distinction in right-to-silence jurisprudence presupposes a flawed conception of mind/body dualism. Exposing this dualism reveals that the normative significance we confer to a suspect’s control over his thoughts against unwanted use by the government. The use of compelled neuroscientific evidence is illegitimate when it deprives the accused of control over her mental life. Prosecutors may not comment on a suspect’s decision to decline the testing, and judges should instruct jurors not to draw adverse inferences from a choice to decline testing. Instructions against drawing adverse inferences are likely to be effective, however, only if jurors come to recognize legitimate reasons to decline testing.
June 5, 2010 | Permalink