Music For Your Listening Pleasure: Ry Cooder And Friends

January 31, 2012

Here’s Ry Cooder and David Lindley performing All Shook Up. Cooder is playing a 12 string electric mandolin with a thick glass slide and Lindley accompanies on a 12 string electric guitar.

Here’s Boogie Chillun with John Lee Hooker, Charlie Musselwhite, Carlos Santana, Robert Cray, Bonnie Raitt, and Ry Cooder.

Go here to find out everything you wanted to know about Ry Cooder and the instruments he plays.


Habeas Corpus Explained

January 31, 2012

The writ of habeas corpus, also known as the Ancient Writ because it originated in England during the Middle Ages, literally means an order to produce the body.

In modern practice, the writ of habeas corpus is an order issued by a judge in the legal district where a prisoner is incarcerated and it is served on the person in charge of the facility in which the prisoner is serving the sentence, typically a warden. The order directs the warden to produce the prisoner in court at a specific date and time for a hearing regarding whether there is a proper legal basis for the prisoner’s incarceration.

The prisoner, or someone acting on the prisoner’s behalf (i.e., typically a jail-house lawyer or a lawyer), prepares a petition (i.e., a request) for a writ of habeas corpus alleging facts by sworn affidavit and making legal arguments that, if true, would constitute a confinement in violation of a constitutional right requiring the court to issue an order releasing the prisoner or granting a new trial.

Every person in this country has a Fifth and Fourteenth Amendment constitutional right to due process of law with the odious exception of the recently enacted National Defense Authorization Act, or NDAA, which authorizes the military to seize and indefinitely detain any individual in the world no matter where situated — including citizens of the United States — pursuant to an order issued by the president. The president also claims to have the power to order people assassinated and has exercised that power at least twice that we know about. The constitutionality, legitimacy, and morality of those claims are beyond the scope of this article.

The Due Process Clause, as it is called, of the Fifth Amendment applies to people prosecuted by federal officials (i.e., United States Attorneys or Department of Justice lawyers) for violating federal crimes while the Due Process Clause of the Fourteenth Amendment makes the Due Process Clause of the Fifth Amendment applicable to people prosecuted by state officials (i.e., a state prosecutor) for violating state laws.

Due process of law generally means people have a constitutional right to a speedy and public trial before an impartial jury in the jurisdiction where the crime was allegedly committed. Due process also includes the Sixth Amendment right to be represented by a lawyer and, if the person cannot afford a lawyer, the court must appoint a lawyer to represent the person at public expense. The accused has the right to confront accusers through cross examination and the jury must presume the accused to be innocent unless the prosecution unanimously convinces the jury beyond a reasonable doubt that the accused committed the crime or crimes charged. The accused cannot be required to testify and may remain silent during the trial. The accused is entitled to have the court instruct the jury that it may not consider silence as evidence of guilt.

If the jury finds the accused guilty, he or she has the right to appeal the conviction. This is called the right to a direct appeal, which is an appeal based on all matters of record (i.e., official transcripts of all proceedings in court prepared by court reporters, or videos of those proceedings). The right to a direct appeal also includes the right to be represented by counsel.

The federal judiciary has a court of last resort called the Supreme Court and intermediate appellate courts called circuit courts of appeal. Similarly, all states have a court of last resort, or Supreme Court (except New York which inexplicably calls its trial courts supreme courts and its court of last resort the Court of Appeals). With the possible exception of a few sparsely populated states, the states have intermediate appellate courts called courts of appeal.

In practice the right to a direct appeal means the right to appeal to an intermediate appellate court and, if the conviction is affirmed, to seek discretionary review of the decision by the Supreme Court.

Discretionary review means the Supreme Court has the power to decide whether to review a decision by the intermediate appellate court.

And now back to habeas corpus. Because of all the rights that I have briefly mentioned and explained, the writ of habeas corpus does not generally come into play until after the right to a direct appeal has been exercised and exhausted leaving the prisoner without a further legal remedy. Practically speaking, this means that a prisoner would not file a petition for a writ of habeas corpus until after he or she lost the direct appeal and the Supreme Court denied review, or affirmed the Court of Appeals, assuming it granted discretionary review.

By the way, the Supreme Court of the United States, or SCOTUS, calls the application for discretionary review a petition for a writ of certiorari.

Notice that I have referred to direct appeals as a method of appealing decisions by the trial court, including jury verdicts, based on appellate court review of matters for which there is an official transcript or video to review. What about matters or issues for which there is no official transcript or video to review?

That is where habeas corpus comes into the picture in modern day legal practice. Briefly, the petition for a writ of habeas corpus is a formal legal request asking a judge to review issues or matters for which there is no official record available to review.

What sort of issue might that be?

As I said earlier, due process of law includes the Sixth Amendment right to be represented by counsel. That means “effective assistance of counsel” and the SCOTUS in Strickland v. Washington, 466 U.S. 668 (1984), defined that term as competent representation according to the standards of legal practice in the jurisdiction at the time and the failure to provide such representation must have been a “material” defect (i.e., it affected the outcome).

Why would an ineffective-assistance claim not be a matter of record?

Let us take a look at the infamous death penalty case of the sleeping lawyer. In Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001), the federal Court of Appeals for the Fifth Circuit held that Mr. Burdine was denied effective assistance of counsel because his court appointed lawyer slept through much of his death penalty trial. Mr. Burdine could not support his claim against his lawyer by relying on the official court record because, not surprisingly, it did not state when the lawyer was asleep. Mr. Burdine had to rely on affidavits (i.e., sworn written statements) of people, including himself, who witnessed the lawyer sleeping during the trial.

Ineffective-assistance claims are allegations that the lawyer did or failed to do something that the applicable professional standards prohibited or required the lawyer to do. In Mr. Burdine’s case, that was the basic obligation to be awake, paying attention, and participating in the proceedings. The vast majority of these claims can only be established by affidavits from witnesses and experts (e.g., other lawyers) that, if true, would constitute an actionable claim for ineffective assistance of counsel.

In the typical case, the prisoner or his representative files the petition with supporting affidavits and legal argument. The opposing party, be it the state or federal prosecution, usually responds with a motion to dismiss the claim on the ground that, even if the court assumes for the sake of argument that the factual allegations in the petitioner’s affidavits are true, they do not state a claim for which relief can be granted.

Judges dismiss many habeas claims on this ground. This is not surprising since most petitioners are representing themselves because they cannot afford to pay a lawyer.

The only exception is death penalty cases. Due to the finality of the penalty, courts will appoint counsel in habeas cases and this is why most successful habeas claims occur in death penalty cases. Errors in other cases are just as egregious, if not more so, but the claims are not adequately presented to survive a motion to dismiss.

If the court denies the motion to dismiss, it will appoint counsel for an unrepresented petitioner and the prosecution will answer the petition with its affidavits and supporting legal argument. If the prosecution disputes the factual claims presented by the petitioner, the court will issue the writ and order the warden to produce the petitioner at an evidentiary hearing at which the court will decide the disputed facts.

If the court decides for the petitioner, it usually orders a new trial. If it decides for the prosecution, it will issue an order denying the claim.

The petitioner can appeal a decision denying the petition.

The most common successful habeas claim in death penalty cases is an allegation that defense counsel failed to adequately investigate the petitioner’s past history to discover mitigating evidence that should have been presented for the jury to consider during the sentencing phase of the trial. Mitigating evidence is any evidence about the petitioner or the crime he committed that in fairness or mercy warrants a sentence of less than death.

Another basis for a habeas claim would be newly discovered evidence, such as a DNA post-conviction exoneration.

Finally, a person is limited to only one habeas corpus petition in state and federal court. Successive petitions are generally prohibited and a failure to assert a particular claim in a state habeas petition constitutes a waiver of that claim in a federal petition. A person also must exhaust habeas claims in state court before filing for the writ in federal court.

DISCLAIMER: I have presented a general overview of habeas corpus for lay persons interested in knowing more about it. Habeas corpus is a complicated area of the law and my summary only scratches the surface, so to speak. I have provided background information, not legal advice. Readers should consult with an experienced habeas lawyer, if they require further information or assistance.


Feeling The River Flow- Dean Evenson

January 30, 2012

This video is by chase fukuoka 61. All of his uploads are absolutely beautiful. I will be writing another law blog tomorrow, but in the meantime, I hope you enjoy this video.

Tomorrow’s blog will be on habeas corpus.

For an interesting story about our adventures today, go here.


Saturday Art: Jury Selection And The Art Of Voir Dire

January 21, 2012

Justice at work

Justice at Work
From Creative Commons at Flickr

Jury Selection And The Art Of Voir Dire

Voir dire means to speak the truth. We use the term to describe two legal processes, the process by which prospective jurors are questioned to select a jury and the process by which certain witnesses are questioned to determine if they are qualified to testify as experts and express opinions. This post will be about jury selection, a subject near and dear to my heart.

Which do you think is most important to win a jury trial?

(a) Jury selection,

(b) Opening statement,

(c) Direct examination,

(d) Cross examination, or

(e) Closing argument?

The correct answer is: (a) jury selection.

Why?

Because, if you do not select the right jury, you will have little chance to win, no matter how strong your case and how proficient you are with the other four skills.

How do you select a jury?

Let us begin with a clarification. Jury selection is a misnomer because each side actually selects the jurors whom they do not want on the jury.

How do you select the jurors whom you do not want on your case?

Hopefully, the panel of prospective jurors has filled out a juror questionnaire that you have had an opportunity to review before you begin to question them. I always prepared questionnaires tailored to the issues in my case. For example, if there had been extensive negative pretrial publicity, which was pretty common given the types of cases that I handled, I would include a short description of the case in the questionnaire and ask the prospective juror to write down what they had read or heard about the case and whether they had formed an opinion about my client’s guilt or innocence. Another example involves rape cases where you want to know whether the prospective juror, or a family member, or close friend has ever been raped.

You question prospective jurors individually using their answers on the questionnaire as a guide and, depending on their answers, you pass or challenge them for cause, or later use a peremptory challenge to get rid of them.

Challenges for cause are unlimited, but you must reasonably articulate a reason why you believe a prospective juror cannot be fair, impartial, and follow the jury instructions that are the law of the case. If your opponent objects to your challenge for cause, your challenge will turn into mini trial with you attempting to discredit the prospective juror whom you have challenged and your opponent attempting to rehabilitate him or her. Ultimately, the judge will decide whether to grant or to deny the challenge.

Warning: Keep in mind that, if you lose the challenge, you are going to have to use one of your limited number of peremptory challenges to get rid of the prospective juror whom you have just insulted in front of all the rest of the panel of prospective jurors by challenging his ability to be fair, impartial, and follow the court’s instructions. If you think you are going to lose the challenge for cause and possibly irritate the other members of the panel in the process, you should seriously consider passing the prospective juror for cause and later use one of your peremptory challenges to get rid of him.

Peremptory challenges are exercised silently by opposing counsel passing a sheet of paper back and forth and striking a prospective juror each time. Finally, delay striking someone whom you think your opponent may strike. If she does, you will have saved a peremptory that could mean the difference between winning or losing the case.

You do not have to explain why you challenged a prospective juror, unless the challenge appears to be systematically based exclusively on race, sex, or religious affiliation. If that appears to be the case and your selection is challenged, you will have to satisfy the judge that you had another reason.

In misdemeanor cases, each side gets 3 peremptory challenges. In felony cases, each side gets 6 peremptory challenges. In death penalty cases, each side gets 24 peremptory challenges.

I used to tell my clients to think of our peremptory challenges as bullets in a gun. We have to use them strategically so that we do not need one after we run out.

So, here is the strategy in a nutshell.

(1) Go through the questionnaire and identify the prospective jurors who appear to have strong personalities who, by reason of education, experience, or occupation appear to be capable of leading the jury. You must get rid of any of them who appear biased in favor your opponent or prejudiced against you or your client. No matter how good you are, you will lose, if you fail to do this.

(2) Identify any other prospective jurors who for any reason appear to be, or might be biased in favor of your opponent or prejudiced against you or your client. You can probably still win your case, if you leave them on the jury, so long as they do not influence other jurors to vote for your opponent’s case. Prioritize getting rid of them according to how likely you believe they will influence others.

(2) Focus on both categories of prospective jurors during voir dire and, if you confirm your initial opinion, try to set them up for a challenge for cause.

(3) Pass or challenge the prospective juror for cause. Occasionally, you will desperately want to get rid of a prospective juror who stubbornly refuses to admit they are prejudiced against you or your client, even though the prejudice is apparent. You will need to use a peremptory challenge to get rid of them, if that happens.

(4) Exercise peremptory challenges after a sufficient number of prospective jurors has been passed for cause, such that there will be enough of them to form a jury, plus alternates, if both sides exercise all of their peremptory challenges.

Selecting a jury is an art form that is not taught in law schools. Very few judges and lawyers appreciate how important it is and only a few of them know how to do it well. I worked very hard on developing this skill and I believe that is why I won approximately 80-90% of my trials.

You have to know your case thoroughly. You have to identify all of the potentially outcome-determinative factual issues before jury selection. Most of them will relate to witness credibility. You do not want jurors who will not believe you and your witnesses. If you are not planning on calling any witnesses — as might happen in a criminal case, if your client decides not to testify — you want jurors who will follow the jury instructions and not hold your client’s silence against him.

Here is an example regarding the presumption of innocence.

Defense counsel: Good morning, Mr. Jones.

Q: I am going to ask you a hypothetical question, sir. Let us suppose that you have to decide whether my client, Sandra Wade, is guilty or not guilty, and you have to make that decision right now, before you have heard any evidence. What would your decision be?

A: Uhm, I don’t know. I can’t make a decision without any evidence.

Q: I understand. I suppose like most folks, you want to be fair and hear both sides before you make a decision, right?

A: Yes, I want to be fair.

Q: Fair to both sides?

A: Yes, of course.

Q: Do you believe it is important to follow the court’s instructions?

A: Yes.

Q: Even if you disagree with them?

A: Yes, the judge told us they are the law of the case and I intend to follow the law.

Q: Even if you disagree with them?

A: Yes.

Q: Since this is a criminal case, the judge has instructed you that my client, Sandra Wade, is presumed innocent, right?

A: Right.

Q: What is your verdict right now, before you hear any evidence?

A: Uhm, Okay. I see what you mean. I guess I’d have to vote not guilty.

Q: Sounds like you aren’t sure. Are you certain you could do that? Because, if you can’t, you probably should not be a juror in this case. Do you understand why I say that?

A: Yes, you’re representing Ms. Wade and protecting her legal rights.

Q: Right. This isn’t personal. I just want to know if you can honestly — and I emphasize the word ‘honestly’ — presume Sandra Wade is innocent, even though she is charged with killing her husband while he was asleep. Lots of folks for one reason or another might not be able to do that and that doesn’t mean they are a bad person. It just means they shouldn’t be a juror in this case. How about you, sir?

Can you look her in the eye and honestly tell her that you presume she is innocent?

A: Yes.

Thank you, sir. Your Honor, I pass Mr. Cameron for cause.

Warning: Eye contact and body language are vitally important indicators that often are more important than the answers people give. For example, if Mr. Cameron had suddenly shifted his body position or been unable to look at my client when I asked him to look her in the eye, I would have known that I had to get rid of him, unless I was satisfied that he would not lead the jury.

INSIDER TIP: When in doubt while questioning prospective jurors during voir dire, ask why they said or did something. This gets them talking and you will find out a lot more about them, if you are listening, rather than trying to impress everyone with how smart and well spoken you are.

Namaste.


Closing In On Dark Matter (Part 2)

January 19, 2012

Mapping the Invisible - Hubble Yields Clues to Galaxy Cluster Growth

Mapping The Invisible — Hubble Yields Clues To Galaxy Cluster Growth
By NASA Goddard Photo and Video
Creative Commons at Flickr

In Part 1 of this continuing series on dark matter, I reported that scientists have been perplexed by the apparent lack of sufficient matter in the Milky Way Galaxy to keep it from flying apart. Space is expanding and scientists theorize that something they call dark energy, which is everywhere in the observable universe, is causing that expansion. Since space is not expanding in our Milky Way, the matter present must be generating sufficient gravity to overwhelm dark energy.

Scientists know that matter is a source of gravity and gravity holds galaxies and galaxy clusters together. Our Local Group, for example, is a cluster of galaxies that is composed of our own Milky Way, Andromeda, and several dwarf galaxies nearby that have been identified. However, when scientists total up all of the observable matter in our Local Group, they find that it falls far short of the amount of matter that is required in order to generate enough gravity to defeat dark energy and hold the two galaxies and the dwarf galaxies together in our Local Group.

The lack of sufficient observable matter to hold galaxies and galaxy clusters together, such as our Local Group, is a well known feature of the observable universe.

Scientists have developed a simple theory that, if true, would explain why galaxies and galaxy clusters hold together. They have theorized that there must be a type of matter made up of invisible particles (i.e., they do not emit light) that permeate vast regions of space and it acts like a gravitational matrix or web within which galaxies can develop. It is a beautiful and simple theory, except that they have not identified a particle of dark matter and still do not know what it is.

Dr. Sukanya Ckakrabarti at the University of California at Berkley has proposed a theory to explain why scientists have not detected more dwarf galaxies in our Local Group. She has proposed that such galaxies are present, but we cannot see them because they are made of dark matter, or concealed by it. A year ago at the annual meeting of the American Astronomical Society in Seattle, she reported that she had discovered gravitational ripples at a location in space at the far edge of the Milky Way, approximately 260,000 light years from the center of the galaxy. These gravitational ripples correspond to what she was looking for; namely, the visible gravitational effect of a dwarf galaxy composed mostly of dark matter.

She calls it Galaxy X, and if it is there, it will be about 20% of the size of the Milky Way. Meanwhile, she has to wait in line for her turn to use the Spitzer Space Telescope, just like all of the other scientists waiting for their turn to study space.

Now, the exciting news. In a letter published today in Nature, a professional scientific journal, S. Vegetti, D. J. Lagatutta, J. P. McKean, M. W. Auger, C. D. Fassnacht, and L. V. E. Koopmans have reported that they found a small anomaly in a gravitational lens that may be a small satellite galaxy that’s too faint to be seen via direct observation.

Matthew Francis of Ars Technica explains:

Mass affects the path of light, as a consequence of the general theory of relativity. For a sufficiently large mass, the light’s shift may be sufficiently large that we can measure it, and it can produce lensed images of the original light source. In gravitational lensing, the lens is a galaxy or galaxy cluster lying between Earth and a distant source, itself typically a galaxy. If the lens is directly in the line of sight, the image of the source galaxy can be distorted into an Einstein ring, a circular image of the source. By studying the shape and other characteristics of the image, observers can reconstruct details about both the lens and the source galaxies.

A particular lens system, JVAS B1938+666, is a distant elliptical galaxy that produced a bright Einstein ring image of an even more remote source galaxy. Independent observations by the W. M. Keck Telescope’s Near Infrared Camera 2 and the Near Infrared Camera aboard the Hubble Space Telescope provided the basis to reconstruct the mass distribution in the lens galaxy. The analysis by Vegetti and colleagues found an anomaly in the results; explaining it requires either an extra bit of mass in the lens or some intervening dust to block the light from parts of the image. However, dust absorbs light in a particular way, changing the spectrum of the image, and the team failed to find the appropriate signature.

That leaves the most likely culprit being another clump of mass that isn’t part of the main lens galaxy. Subtracting a reasonable model for the elliptical galaxy leaves the image pattern that would be produced by this hypothetical clump of mass. If you assume that this lensing isn’t from an unconnected galaxy with a smaller effect, then the clump of mass can be characterized fairly easily apart from the larger elliptical galaxy. Starting with assumptions taken from standard dark matter simulations, the researchers attempted to fit the location and mass of the clump, and found something consistent with an object in the same mass category as the Sagittarius dwarf galaxy.

Although the research letter published today in Nature calls this dwarf galaxy candidate “dark” both in the title and description (implying no emitted light), the authors do point out that they can only put a ceiling on the luminosity on the object. That maximum limit is still brighter than several of the Milky Way’s dwarf satellite galaxies. In other words, it’s premature to declare that a dark galaxy has been found, even if the mass estimate holds up under further investigation.

The scientists report that the lens galaxy is about 3 billion parsecs away. A parsec is the distance traveled by light in 3.26 years, or about 19 trillion miles. In other words they are detecting light that was emitted by the lens galaxy when the universe was half its present age.

Detecting any small galaxy at that distance is not only an impressive feat, but also gives us some hints about the history of the formation of galaxies farther back in time. Since the candidate dwarf galaxy was found using parameters from dark matter simulations, the authors argue that the simulations may not be as far off as they have seemed.


Does Chris Hedges Have Standing To Sue Barack Obama and Leon Panetta?

January 17, 2012
Gavel Sculpture at  Ohio Judicial Center by Andrew F. Scott (photo: afsart, flickr)

Gavel Sculpture at Ohio Judicial Center by Andrew F. Scott (photo: afsart, flickr)

(h/t to Liz Berry at Firedoglake for alerting me to Chris Hedges’s lawsuit in her post yesterday)

Chris Hedges recently filed a lawsuit against President Barack Obama and Secretary of Defense Leon Panetta in the United States District Court for the Southern District of New York, which is located in New York City. He is challenging the constitutionality of the National Defense Authorization Act that the president signed into law on December 31, 2011. The law will go into effect on March 3, 2012.

This is the controversial law that authorizes the military to arrest and indefinitely detain anyone without a trial, including U.S. citizens within the territorial boundaries of our nation, if they are deemed to be a terrorist or an accessory to terrorism. He calls this law “a catastrophic blow to civil liberties.” I agree.

He alleges in his complaint that he is at risk to be detained under this law because, in practicing his profession as a journalist, he already has engaged in activities by spending time with and developing long-term relationships with individuals actively involved in activities to overthrow authoritarian governments that are allied with the United States. He contends that hose activities could arguably constitute a violation of this statute, given its vague and undefined terms like “substantially supported” terrorism, “directly supported” terrorism, and “associated forces” with Al Qaeda.

The Government will no doubt move to dismiss his complaint on the ground that he lacks standing to challenge the constitutionality of the statute because he has not been detained under its provisions. This argument has been successful in the past in other cases.

Hedges hopes to satisfy the standing requirement, since he intends to continue to develop relationships with and interview people who are actively involved in challenging authoritarian governments and U.S. corporate power. Given the government’s past behavior targeting and harassing peace, antiwar, and environmental groups for non-violently opposing government and corporate activity, he believes that the government will regard him as a person who supports terrorism, if he should write reports from the field that criticize the U.S. and its military. This would place him at risk to be disappeared into a U.S. gulag by the U.S. military, if the court does not act. Read the rest of this entry »


The Deal

January 15, 2012

I am 64 years old. I have never been as disgusted with the political situation in the United States as I am now. On a scale from 1 to 10, I score all of the Republican candidates and Barack Obama at -1.

In other words, unfit and unqualified to serve.

Hell, I refuse to support Obama because I consider him to be a serial liar and a war criminal who supports indefinite detention, torture, and extrajudicial assassination. He’s flat out insane and dangerous. There is only one place he should be and it is not the White House. It is a prison cell.

The mind blowing fact about the campaigns of the various candidates is the absence of any acknowledgement and discussion of the important issues of these difficult times.

(1) Why empire?

(2) Why no civil liberties?

(3) Why are 2.3 million people locked up?

(4) Why haven’t all drugs been legalized?

(5) Why isn’t anything being done about unemployment?

(6) Why not single-payer health insurance for all?

(7) Why not free college and graduate education?

(8) Why forfeiture?

(9) Why no prosecutions of war criminals and criminal banksters?

(10) Why haven’t the TBTF banks been allowed to fail or taken over and broken up?

(11) Why the extreme and increasing disproportional distribution of income and what can be done to reverse it?

(12) Why oil?

(13) Why nuclear?

(14) Why coal?

(15) Why poverty?

These are some, but not all of the problems that beset us and I neither want to hear, nor will I listen to all these stupid jerk candidates babbling about bullshit.

Fortunately, OWS is starting to change the dialogue, and that gives me hope.

Which brings me to The Deal.

Listen to this tune by the Grateful Dead with OWS as The Deal.

OWS is The Deal.

The Deal

Source: The Annotated Grateful Dead Lyrics by David Dodd.

Words by Robert Hunter; music by Jerry Garcia
Copyright Ice Nine Publishing.

Since it cost a lot to win
and even more to lose
You and me bound to spend some time
wondring what to choose

Goes to show you don’t ever know
Watch each card you play
and play it slow
Wait until your deal come round
Don’t you let that deal go down

I been gambling here abouts
for ten good solid years
If I told you all that went down
it would burn off both your ears

It goes to show you don’t ever know
Watch each card you play
and play it slow
Wait until your deal come round
Don’t you let that deal go down

Since you poured the wine for me
and tightend up my shoes
I hate to leave you sittin there
composin lonesome blues

It goes to show you don’t ever know
Watch each card you play
and play it slow
Wait until your deal come round
Don’t you let that deal go down
Don’t you let that deal go down, no
Don’t you let your deal go down


Saturday Art: The Heilbrunn Timeline of Art History

January 14, 2012

Metropolitan Museum Collection. Model of King Sahure's Pyramid at Abusir

Model of Pharaoh Sahure’s Pyramid Complex at Abusir, Metropolitan Museum Collection. By Cornell University Library on Creative Commons at Flickr
Pharaoh Sahure was the Second pharaoh of the 5th Dynasty (2458-2446 BCE)

I recommend to all of you art enthusiasts the Heilbrunn Timeline of Art History. The site is part of the Metropolitan Museum of Art and it provides you with an interactive timeline of art history.

There are 300 timelines available to peruse at your leisure, so this is a great site to bookmark and periodically return to view.

Each timeline includes “representative works of art from the Museum’s collection, a chart of time periods, a historical overview, a list of key events, and related content.”

The site also presents 900 thematic essays that ” focus on specific themes in art history, including artistic movements and periods, archaeological sites, empires and civilizations, recurrent themes and concepts, media, and artists.” Each thematic essay includes links to related themes and timelines and often demonstrates the cross-fertilization of civilizations.”

You can examine and compare art from any of the ten geographical regions of the world during any of the time periods ranging from 8,000 BCE to the present. The regions are North America, Central America, South America, Africa, Europe, West Asia, Central and North Asia, East Asia, South and Southeast Asia, and Oceania. Just click on any icon exhibiting a small photo of a representative sample and it will enlarge to a splendid close-up photograph of the sample with “supporting material, including when available, links to technical glossaries on CAMEO and artist biographies from Oxford Art Online.” In all, there are 6,000 photographs available to examine.

You also will find a bibliography “comprised of over 3,000 Metropolitan Museum of Art publications” that is “further enriched by other publications whose primary focus is on Metropolitan Museum works of art.”

Cross Posted from my law blog.


Forensic Fraud (Part 2)

January 13, 2012

As I said yesterday in Part 1,

One of the biggest problems we’ve seen in crime labs is people testifying as experts regarding matters beyond their expertise.

This happened in Crane-Station’s case when a lab tech with a bachelor’s degree from Transylvania University in Lexington, KY, who routinely analyzes human blood samples for controlled substances in the Central Lab of the Kentucky State Crime Laboratory using gas chromatography and mass spectrometry (GCMC), testified as an expert toxicologist regarding the probable effects of Clonazepam on her. He was permitted to do this without objection from her lawyer, even though,

(1) he had not detected Clonazepam, or any other drugs in her blood when he analyzed her sample;

(2) he had no formal training in drug toxicology;

(3) he never had published a peer reviewed article in a professional journal on any subject;

(4) he did not know what constituted a toxic level of Clonazepam in human blood, as opposed to a safe level;

(5) the prosecutor told him that she had admitted taking her prescribed medication when she was arrested, which included Clonazepam, but he had no information regarding what dosage she had taken and when she had taken it.

Nevertheless, he was permitted to express his opinion as an ‘expert’ that she was probably under the influence of and impaired by Clonazepam when the deputy stopped her.

This was a travesty of speculative nonsense and never should have happened.

Now, how is it possible that she could have been under the influence of and impaired by Clonazepam, if he did not detect it in her blood sample?

Well, he testified that it is difficult to detect using gas chromatography and he might have been able to detect it using liquid chromatography, but the Kentucky State Crime Lab cannot afford the equipment to perform that analysis.

Could some other lab have performed the analysis?

Well, as a matter of fact, NMS Labs in Philadelphia can do it and the Kentucky State Crime Laboratory has a contract with NMS to do the test.

Did that happen in Crane’s case?

According to the Director of the Kentucky State Crime Laboratory, the lab sent her blood sample to NMS.

But Ryan Johnson claims that he did not send her blood sample to another lab and the prosecution denies that another lab tested her sample, or that there is an exculpatory lab result from NMS.

However, there is a 2-month gap between the date that Ryan Johnson completed his analysis and the date that it was approved by his supervisor.

Sure looks like he completed his analysis and sent her sample to NMS. They tested it and sent it back reporting an exculpatory result confirming his analysis without generating a written report, so his supervisor reviewed and signed off on his exculpatory result. Then the prosecution turned over his report without mentioning the NMS report.

NMS has referred all inquiries to the prosecutor and, as I said, the prosecutor claims there is no NMS Report or analysis.

This is the kind of bullshit that we are dealing with.


Forensic Fraud (Part 1)

January 12, 2012

Forensic fraud is an ongoing serious problem in our courts.

For example, in State v. Kunze, 97 Wn.App. 832, 988 P.2d 977 (1999), the Washington State Court of Appeals reversed David Kunze’s conviction for killing James McCann, a man who had informed him four days earlier that he was going to marry Kunze’s ex-wife. Kunze and his ex-wife had divorced 8 months earlier after 18 years of marriage and Kunze was reportedly upset when he heard the news. The court related the pertinent facts as follows.

In the early morning hours of December 16, 1994, an intruder entered the Clark County home of James McCann. McCann was asleep in the master bedroom. His son Tyler, age 13, was asleep in another bedroom. The intruder bludgeoned McCann in the head with a blunt object, causing his death. The intruder also bludgeoned Tyler in the head, causing a fractured skull. When the intruder left, Tyler crawled out to the front porch, where he was found after daylight by a passerby.

While awaiting surgery at the hospital, Tyler told the police that he had been afraid to look at his attacker closely. He thought, however, that the attacker was a darkly complected male, possibly Puerto Rican, about six feet tall with medium build, dark or black hair to mid-ear, 25 to 30 years of age, and a deep voice. Tyler later recalled that the attacker wore gloves but not glasses, and had a flashlight in his mouth. Kunze is in his mid-forties, wears glasses, and has reddish-blond hair.

Back at the house, the police observed that the intruder had opened drawers and cabinets without disturbing the contents. They also found that the intruder had taken a TV, a VCR, stereo speakers, a “boom box,” McCann’s wallet containing identification and credit cards, McCann’s truck, and various other items.

George Millar, a fingerprint technician with the Washington State Crime Laboratory, processed the home for evidence. He discovered a partial latent earprint on the hallway-side surface of McCann’s bedroom door. He “dusted” the print by applying black fingerprint powder with a fiberglass brush. He “lifted” the print by applying palm-print tape first to the door and then to a palm-print card. The resulting print showed the antitragus and portions of the tragus, helix, helix rim, and antihelix. The external features of a complete ear are shown in the following diagram.

(diagram omitted)

On or about March 28, 1995, Michael Grubb, a criminologist with the Washington State Crime Laboratory, compared the latent print from McCann’s bedroom door with photos of the left side of Kunze’s face. He concluded that the latent print “could have been made by Dave Kunze.” He also thought that “[i]t may be possible to obtain additional information by comparing the [latent print] to exemplar impressions.”

On September 21, 1995, Millar and Grubb met with Kunze to obtain earprint exemplars. Neither had taken an earprint exemplar before, although each had practiced on laboratory staff in preparation for meeting with Kunze. For each of the seven exemplars they took, they had Kunze put hand lotion on his ear and press the ear against a glass surface with a different degree of pressure (“light,” “medium,” or “hard”). They then dusted the glass with fingerprint powder and used palm-print tape to transfer the resulting impression onto a transparent plastic overlay.

The reason Millar and Grubb took multiple exemplars is that they were consciously trying to produce one that would match (i.e., “duplicate” the latent print from McCann’s door. They knew that earprints of the same ear vary according to the angle and rotation of the head, and also according to the degree of pressure with which the head is pressed against the receiving surface. They did not know the angle and rotation of the head that made the latent print, or the degree of pressure with which that head had been pressed against McCann’s door. Hoping to compensate for these difficulties, they told Kunze to use a different degree of pressure each time (“light,” “medium” or “hard”), and they looked at the latent print as they worked.

After Millar and Grubb took the exemplars, they were asked to compare them to the latent print. Millar declined because his laboratory supervisor thought that earprint identification was “out of the expertise of the [crime lab’s] latent unit.” Grubb went ahead, concluding that “David Kunze is a likely source for the earprint and cheekprint which were lifted from the outside of the bedroom door at the homicide scene.”

After reviewing the testimony of 3 forensic scientists, who testified for the prosecution, and 12 forensic scientists, who testified for the defense, the court held that earprint-identification evidence should not have been admitted at trial because it is not generally accepted in the forensic science community.

I had known Mike Grubb professionally for many years because he was often involved in cases that I handled. I was shocked when I read the Kunze case and found out that he had testified that earprint-identification evidence is generally accepted in the community of forensic scientists because that is absolutely false. At the time, he was the acting supervisor of the Washington State Patrol Crime Lab in Seattle and one of the state’s most experienced and respected forensic scientists. I believe he must have known that earprint-identification evidence is not generally accepted by forensic scientists when he testified that it was.

Why did he testify that it was?

I suspect he did because he viewed himself to be a member of the prosecution team, rather than an independent forensic scientist doing his job and letting the chips fall wherever they may.

Most, and probably all publicly owned and operated forensic crime laboratories, including the FBI Crime Lab obviously, are agencies within a law enforcement agency. Over the years, I have known many forensic scientists and many of them have complained privately to me that, as a quasi law enforcement agency, they occasionally have felt pressured to assist the prosecution by rendering improper opinions that will convict a defendant. The feel like it is too easy to get caught up by the fever to build a case that convicts a prime suspect and they wish they could be an independent agency.

On the other hand, there are many forensic scientists who see themselves as a modern day Sherlock Holmes, a crime solver who helps law enforcement nail the perpetrator. In other words, the ultimate team player. This is the mentality, for example, that you see when you watch a show like CSI.

Apparently, Mike Grubb falls into this latter category.

BTW, he moved on after the Kunze case to become the head of the San Diego Crime Lab.

The Innocence Project in New York City, which has freed 284 wrongfully convicted innocent people by post-conviction DNA testing, has identified forensic fraud as one of the 7 causes of wrongful convictions. This is what they say about forensic fraud.

The risk of misconduct starts at the crime scene, where evidence can be planted, destroyed or mishandled. Evidence is later sent to a forensic lab or independent contractor, where it can be contaminated, poorly tested, consumed unnecessarily or mislabeled. Then, in the reporting of test results, technicians and their superiors sometimes have misrepresented their findings. DNA exonerations have even revealed instances of “drylabbing” evidence – reporting results when no test was actually performed.

All over the map

The Innocence Project has seen forensic misconduct by scientists, experts and prosecutors lead to wrongful conviction in many states. The following are among the more notorious:

• A former director of the West Virginia state crime lab, Fred Zain, testified for the prosecution in 12 states over his career, including dozens of cases in West Virginia and Texas. DNA exonerations and new evidence in other cases have shown that Zain fabricated results, lied on the stand about results and willfully omitted evidence from his reports.

• Pamela Fish, a Chicago lab technician, testified for the prosecution about false matches and suspicious results in the trials of at least eight defendants who were convicted, then proven innocent years later by DNA testing.

• A two-year investigation of the Houston crime lab, completed in 2007, showed that evidence in that lab was mishandled and results were misreported.

Tomorrow in Part 2, I will review some forensic butchery in Crane-Station’s case.


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