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 »


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.


Opinion Evidence, Expert Witnesses, And The Plight Of The Injured Plaintiff

January 9, 2012

Junk science and the charlatans for sale who rely on it while masquerading as objective experts above the fray of litigation constitute a serious and continuing problem to the fair administration of justice in our legal system.

The Federal Rules of Evidence (FRE) distinguish between ordinary witnesses and expert witnesses. With a few exceptions, such as whether a person appeared to be intoxicated or how fast someone was driving, ordinary witnesses are supposed to restrict their testimony to facts they perceive through their five senses. Experts are permitted to express opinions that are typically expressed to a “reasonable scientific (or medical) certainty.” A major part of the problem for indigent and poor plaintiffs is lack of sufficient funds to hire sufficiently qualified experts. Plaintiffs personal injury lawyers usually advance the costs of such witnesses and reimburse themselves out of a favorable money judgment. In practice, this means that they will not agree to take a case unless they are virtually certain they will win. It also means that the lawyer or firm that takes the case must have a big war chest and there are not very many who do. Meanwhile, corporations and insurance companies have virtually unlimited funds available to retain multiple experts and they routinely subject plaintiffs to delays and hurdles to leap until money runs out and they settle the case for less than it is worth or they drop out.

Fortunately, in criminal cases, an indigent defendant has a Sixth Amendment right to have the court appoint and compensate an expert when an expert’s assistance is “reasonably necessary” to present a defense. Ake v. Oklahoma, 470 U.S. 68 (1985).

There are any number of urban legends about undeserving plaintiffs who won multiple million dollar judgments against ‘poor’ corporations and insurance companies, but I doubt that any of the stories are true. Even if some of them are true, they pale when considering the following studies.

When considering whether there should be limits on tort liability for damages due to personal injury, keep in mind that, according to HealthGrades’ fifth annual Patient Safety in American Hospitals Study, patient safety incidents cost the federal Medicare program $8.8 billion and resulted in 238,337 potentially preventable deaths during 2004 through 2006.

This study followed HealthGrades’ studies in 2000-2002 that reported 195,000 preventable deaths per year in U.S. hospitals.

Here are the applicable rules regarding ordinary and expert witness testimony.

As you read the rules and my discussion of Daubert v. Merrell Dow Pharmaceuticals that follows, keep in mind that one of the many evidence-based debates that we should be having as an educated democratic society, but tragically are not having, is what should we do to reform these rules and other practices to assure fair and equitable results to economically disadvantaged people who suffer personal injury.

Rule 701 provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are

(a) rationally based on the perception of the witness,

(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and

(c) not based on scientific, technical, other specialized knowledge within the scope of Rule 702.

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if

(1) the testimony is based upon sufficient facts or data,

(2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court reversed the Ninth Circuit Court of Appeals decision affirming the trial court’s dismissal of the plaintiffs’ lawsuit against Merrell Dow Pharmaceuticals for birth defects allegedly caused by Bendectin, a drug manufactured by Merrell Dow to prevent pregnant women from suffering morning sickness. The plaintiffs had relied on in vitro and in vivo animal studies, pharmacological studies, and reanalysis of other published studies to show that Bendectin could have caused the birth defects. Nevertheless, trial court had dismissed their lawsuit based on the Frye Rule, which prohibits the use of evidence that has been obtained from using a scientific methodology or process that has not been generally accepted in the scientific community.

The United States Supreme Court rejected the Frye Rule in Daubert as unnecessarily restrictive of new discoveries in science because it amounted to little more than counting heads in the scientific community to determine if a principle or methodology was generally accepted rather than evaluating the merits of the new principle or methodology. Therefore, even though the scientific community had not yet generally accepted that Bendectin caused birth defects, the Court concluded that the studies relied on by the plaintiffs were sufficient such that they should have been been permitted to present them to a jury to consider.

In Daubert the Court basically appointed trial judges to function as gatekeepers in determining whether to admit evidence based on novel scientific principles or methodologies. The Court set forth a non-exclusive checklist for trial judges to apply in assessing the reliability of scientific evidence. The specific factors the Court mentioned are:

(1) whether the expert’s technique or theory can be or has been tested according to some objective process,

(2) whether the technique or theory has been subjected to peer review and publication,

(3) whether there was a known or potential rate of error for the technique or theory and, if so, whether it was applied,

(4) whether applicable laboratory standards and controls were used, and

(5) whether the technique or theory used has been generally accepted in the scientific community (which is the Frye Rule downgraded from an outcome-determinative rule to one of several factors that should be considered).


The Wenatchee Sex Ring Case: UPDATED

January 7, 2012

Before I accepted an offer to teach at the American Justice School of Law (AJSL), a start-up law school in Paducah, Kentucky, as well as organize and manage the school’s innocence project, I warned the dean and assistant dean that I wanted their assurance that they would support me, if I questioned and attempted to change the criminal justice system in Paducah. I had previously done that in Wenatchee, Washington with Innocence Project Northwest, an organization that I had cofounded at the University of Washington School of Law in Seattle. The legal and political turmoil that we caused in Wenatchee was still ongoing and I wanted them to know that I would do everything within my power to root out injustice in Paducah, if I found it, no matter how that might impact the school. Both men promised me they would have my back and I accepted their offer of employment.

When Crane-Station and I arrived in Paducah in June, 2006, I discovered that the deans had been recruiting students to enroll at AJSL by using my name and national reputation from our work in the Wenatchee case. I had more or less expected them to do this, so I was not surprised. In fact, I was rather pleased, as I have always viewed myself as a revolutionary and derived considerable pride from instigating change. Nevertheless, I soon found myself checkmated after Crane-Station was arrested because I feared what might happen to her, if I pushed too hard. We have often wondered if the prosecution’s determination to get a conviction and send her to prison for as long as possible, even if it had to withhold evidence, cheat, and suborn perjury to do so, was a reaction to my presence here and the threat that I represented to the conduct of business as usual in this immensely corrupt river town.

I will be writing more about that corruption in the future. Before I do, however, I want to tell y’all a little bit about the Wenatchee Sex Ring case, so that you might better understand why we believe Crane-Station was railroaded into prison to neutralize me. After all, that is an extraordinary claim to make and we believe y’all deserve to know why we believe that is what happened.

The first thing y’all have to understand is that the Wenatchee Sex Ring never existed. It was the product of the prejudiced mind and fevered sexual imagination of a Wenatchee police officer named Bob Perez and several child welfare social workers. The defendants and their children were poor white folks living on welfare and social security disability payments. They belonged to the same church and stood out in an otherwise economically well off community. Many of the parents and their children were developmentally disabled and viewed by many in the community with suspicion and distrust, if not outright hostility. Despite an absence of any evidence, Perez and the social workers also suspected the parents were sexual perverts.

That situation changed when one young girl told her mentally disabled mother, Idella Everett, that several boys in her class at school had jumped her in an alley as she was walking home from school and forcibly touched her privates. The mother reported the matter to a state social worker who suspected the mother and the child were lying in order to protect the child’s father, Harold Everettt, by blaming the boys for bruises in the child’s genital area. When Idella insisted that Harold would never do that to a child, she decided that both parents were sexually abusing the child in the home on an ongoing basis, even though the child persistently denied it. She then persuaded Idella that it was in the best interests of the child to remove her from the home and place her in a loving and nurturing foster home for awhile and put her in therapy to deal with her issues. Not knowing that she had a right to refuse the placement and concerned about her daughter’s welfare, Idella signed a consent form agreeing to the placement.

Well, the loving and nurturing foster home turned out to be the police officer’s home. He and his wife kept repeating that they knew her parents were “very sick and needed help.” They explained the situation to the therapist to make sure that he ‘knew’ that the girl was been sexually abused by her parents over an extended period of time and they decided to work together to convince the girl that her siblings, who were still living in the home, were in danger of being sexually abused by sick parents who needed help to prevent them from victimizing her siblings. They played on her love for her family insisting that unless she told the ‘truth’ (i.e., that her parents had sexually abused her) so that they could provide the help that the parents needed to get better, her siblings would suffer the inevitable unpleasant consequences and it would be her fault because she did not tell the truth. They never told her that getting her parents the help they needed meant convicting them of raping children and sentencing them to prison for more than 20 years.

As ya’ll can imagine, the girl soon buckled under that pressure and told them what they wanted to hear about her parents. Police immediately arrested the parents who immediately protested that they were innocent. The police accused them of lying, separated them, transported them to the police station, and placed them in separate interview rooms. Then they lied telling each of them that the other had confessed that both of them had raped their children and they would spend the rest of their lives in prison, unless they confessed and pled guilty.

Lawyers were not appointed to represent them until after they signed their confessions.

Meanwhile, the police officer continued to tell the girl that he ‘knew’ more adults were involved. When the minister of the church held a public meeting at the church to discuss the arrests and publicly announced that the church membership believed the girl’s parents were innocent victims of a witchhunt investigation and prosecution, the officer and the social worker decided that the minister and everyone who supported him must belong to the sex ring. He told the girl he believed they were involved and sure enough, she agreed.

The police then focused their investigation on interviewing the children of those individuals. They went to the schools that the children attended, pulled them out of their classes and interviewed them individually using the same tactics they used with girl. In most cases, the children buckled under pressure and told them what they wanted to hear.

That led to another wave of arrests with police employing the same tactics they had used with the child’s parents to extract false confessions. Eventually, all of the parents pled guilty and were sentenced to prison terms exceeding 20 years.

Eventually, many of the children recanted their false accusations and there was any physical evidence corroborating the accusations.

I decided to get involved when I read The Power to Harm, an expose of the incredible injustice that had taken place in Wenatchee written by Andrew Schneider and Mike Barber, reporters for the Seattle Post Intelligencer. I recruited 40 lawyers in Seattle to work for free and teamed them up with law students to represent 17 of the innocent men and women who were wrongfully convicted. We succeeded in freeing all of our clients even though all of them had pleaded guilty.

In recognition of our efforts, the National Law Journal awarded Innocence Project Northwest and our teams of lawyers and students its prestigious Indigent Defense Award in 2000.

I do not believe the corrupt legal system in Paducah welcomed my arrival.

EDIT: In the paragraph that begins with the word, ‘eventually’,I corrected a mistake by adding the word never, which is italicized.

Unfortunately, I also inexplicably forgot to mention that all of my innocence project files were in the car when Crane-Station was pulled over and the officers can be seen in the in-dash video reading through them with flashlights using the lid of the trunk as a desk.

This occurred before she was transported to the hospital for the blood draw and before the ‘discovery’ of the controlled substance that started out being heroin and later became crack.

I apologize for the omissions.


The Decision From Hell (Part 3)

December 29, 2011

In Part 1 of this series of posts about the decision from hell, as I have come to call it, I criticized the first part of the Kentucky State Court of Appeals decision in Crane Station’s case.

That part affirmed the circuit court’s pretrial and supplementary post trial decision denying her motion to suppress evidence. In so doing, the Court of Appeals ignored binding legal precedent by United States Supreme Court and Kentucky State Supreme Court cases interpreting the Fourth Amendment. The Court of Appeals, in effect, established a new rule that trial courts may consider evidence acquired after an investigatory stop without the requisite reasonable suspicion in determining whether a police officer had a reasonable suspicion to conduct an investigatory stop. In other words, an otherwise unlawful investigatory stop becomes lawful, if the officer discovers evidence of a crime!

In Part 2, I criticized the Court of Appeals decision that, even if the circuit court improperly restricted her from cross examining the arresting officer, the error was harmless and the conviction should be affirmed. I pointed out there is no question that (1) the trial judge improperly restricted the cross examination and (2) the error violated her Sixth Amendment right to present a defense. Further, because the error involved a constitutional right, the Court of Appeals had applied the wrong rule in determining whether the error was harmless.

If the Court of Appeals had applied the correct rule in Crane’s case, it should have reversed her conviction. Why? Because the correct rule would have required it to conclude that the error affected the outcome of the trial, unless the prosecution could have satisfied it beyond a reasonable doubt that it did not. I demonstrated how that was an impossible in Crane’s case.

Now, let us proceed to take a look at, believe it or not, the most egregious error committed by the Court of Appeals.

After the prosecution rested its case, the defense asked the trial judge to enter a judgment of acquittal on the DUI charge. The trial judge denied the request and the jury subsequently convicted Crane of DUI. The Court of Appeals affirmed the trial judge’s denial of her request.

The problem with this decision is that it ignores the results of two scientific tests of Crane’s blood sample by analysts at the Kentucky State Crime Laboratory that conclusively established to a reasonable scientific certainty that she had no alcohol and no drugs in her blood.

KRS 189A.010, which defines the crime of DUI, required the prosecution to prove beyond a reasonable doubt that Crane operated her motor vehicle while under the influence of alcohol or any other substance or combination of substances which impairs one’s driving ability.

The Court of Appeals said,

The evidence elicited at trial established that Leatherman admitted to Deputy McGuire that she was taking three prescription medications, including Clonazepam, which contains a warning regarding driving while on that medication. Deputy McGuire also testified to his observations of Leatherman’s behavior, including the results of the HGN test showing intoxication.

Furthermore, Mr. Wilkey (the 911 caller) testified at trial that Leatherman and her husband visited him several months after the incident regarding his upcoming testimony. He reported that Leatherman told him that she was unable to remember what they discussed because she was “whacked out.” This evidence is more than a mere scintilla and is of sufficient substance to permit the question of guilt to go to the jury. (citation omitted)

Putting aside for the moment that I was there, she did not say that or anything like it, I told her lawyer that she did not say that, I asked him to call me as a witness, and he failed to call me as a witness,

The simple fact remains that two scientific tests established to a reasonable scientific certainty that she had no alcohol and no drugs in her blood.

That simple fact also establishes to a reasonable scientific certainty that the deputy and the 911 caller were mistaken or lying when they testified that she appeared to be intoxicated. Further, the HGN test is just a non invasive screening test that indicates possible alcohol or drug impairment that needs to be confirmed by a breath or blood test. Here, the blood test did not confirm impairment and the HGN was not even administered in the proper fashion.

This is a very dangerous precedent, if it is allowed to stand, because it basically says that mistaken and unreliable eyewitness testimony can trump scientific test results that establish innocence to a reasonable scientific certainty.

So much for exculpatory DNA testing . . .

I guess this is the Kentucky Court of Appeals solution to ‘solving’ the alarming, embarrassing, and escalating number of wrongful convictions of innocent people, including many people on death row, as conclusively established by post conviction DNA testing.

Do not attempt to reform the system because that would involve admitting something is wrong. Instead, just disappear wrongful convictions altogether by setting up a false equivalence that a scientific test result is not more accurate and reliable than a lay witness’s opinion and let a jury decide which to believe.

Will the Kentucky State Supreme Court deny Crane’s motion for discretionary review and allow this case to rewrite federal and state constitutional law and ‘solve’ the wrongful conviction problem by ignoring and disappearing it?

Stay tuned.


The Decision From Hell (Part 2)

December 28, 2011

Yesterday, in Part 1 of this post, I critiqued the first part of the Court of Appeals decision affirming the trial court’s denial of her pretrial motion to suppress evidence.

I concluded that the Court of Appeals erred because it improperly relied on evidence (1) obtained after the deputy stopped Crane Station and (2) facts invented by the trial court. The Court of Appeals also (3) erroneously claimed that her appellate lawyer had failed to challenge any of the trial court’s findings of fact. I provided links to the decision by the Court of Appeals and Crane’s Opening Brief on Appeal and her Reply Brief.

In a related post today entitled How Could Judge Taylor Forget Garcia v. Commonwealth, I discussed a decision he wrote reaching the opposite conclusion on a set of materially indistinguishable facts. You may find that to be an interesting and helpful follow-up to Part 1 since he is one the three judges who decided her case. I also referenced Crane’s Petition for Rehearing of the decision by the Court of Appeals just so there is no misunderstanding or confusion regarding whether her lawyer challenged the findings of fact.

This first part of the decision by the Court of Appeals stands for the proposition that a motion to suppress based on an argument that a police officer lacked a reasonable suspicion to stop someone can be decided on the basis of information he acquires after the stop. Likewise an argument that a police officer lacked probable cause to arrest can be decided on the basis of evidence that turns up after the arrest. Both principles are contrary to long established federal and state case law and eviscerate the Fourth Amendment.

Therefore, the Kentucky State Supreme Court must grant discretionary review and reverse the Court of Appeals. If it does not, trial courts across the state will create havoc by following the decision by the Court of Appeals and denying motions to suppress in violation of a long line of state and federal cases. Eventually, the Supreme Court would have to grant review in one of those cases and overrule the Court of Appeals in the Leatherman case.

That is why it is necessary to grant discretionary review.

Today, I will critique that part of the decision that deals with Crane’s statement that her watch had fallen behind the seat during the ride to the hospital and her request for the deputy’s assistance to retrieve her watch for her.

Tomorrow in Part 3, I will deal with the final issue; namely, the decision by the Court of Appeals that the trial court properly denied her motion for a directed verdict of acquittal on the DUI charge. Due to the length of today’s article, I have decided that I should discuss the latter issue in a separate post.

When Deputy McGuire assisted Crane to get out of the back seat of his patrol vehicle at the hospital (because she was handcuffed with her hands behind her back), she told him that her watch had fallen off her wrist and dropped behind the rear seat during the ride. She asked him to please retrieve it for her. That is undisputed.

At the preliminary hearing, McGuire testified that, after they returned to his vehicle following the blood draw, he pulled the seat back, saw the watch and the suspected controlled substance near it, and seized both of them. When her lawyer asked him if he could see the two items before he pulled the seat back, he said. “No.” However, at the suppression hearing, he testified that he saw both items in “plain view” sitting at the top of the seatbelt crack next to where she was sitting when he opened the door to assist her to get out of his vehicle at the hospital.

Those two statements are mutually exclusive. They cannot both be true and there is no question that Crane’s lawyer was entitled to challenge the deputy’s credibility at trial by impeaching him with his prior inconsistent statement under oath at the preliminary hearing. Nevertheless, the trial judge sustained an improper objection by the prosecutor to that line of inquiry preventing him from eliciting the inconsistent statement.

Why did the trial judge do that?

Before jury selection, the trial judge granted the prosecutor’s motion in limine (i.e., at the beginning) for an order preventing the defense from introducing Crane’s statement about her watch and her request for his assistance in retrieving it on the ground that her statement was inadmissible hearsay.

I have addressed this issue previously in Hearsay, Part Deaux.

The judge’s ruling was improper because the statement was not hearsay, since it was not offered to prove the truth of the matter asserted in the statement. It was offered to show that, as a result of something she said (and it really does not matter what it was, which is why it was not offered to prove the truth of the matter asserted), he pulled the seat back to look for her watch and found both the watch and the suspected controlled substance in proximity to each other.

There is nothing misleading or improper about allowing the jury to hear that evidence because that is the way it happened, according to the deputy’s testimony at the preliminary hearing.

Instead, the jury only heard the deputy’s trial version of his discovery, which was that he found her watch and the suspected controlled substance in plain view on top of the rear seat in the seatbelt crack right next to where she was sitting. To make matters worse, in his final summation the prosecutor said the proximity of her watch to the suspected controlled substance in plain view amounted to her “autograph” on the controlled substance and she had not offered any explanation for how they happened to be in plain view together in the seatbelt crack right next to her.

It’s not surprising in the least that the jury found her guilty of possession and evidence tampering for attempting to conceal the rock of crack. Would the jury have convicted her if they knew that the deputy found the rock not in plain view, but under his back seat because she asked him to retrieve her watch from under the seat?

I do not believe the jury would have convicted her because who would ask a police officer to retrieve their watch from under the seat, if they had lost the watch while attempting to slough a controlled substance?

That was her defense, but the trial judge took it away from her with his ruling in limine.

The Court of Appeals did not decide whether her statement about her watch and request for his assistance to find her watch was inadmissible hearsay. Instead, it dodged the issue by saying the error, if any, was harmless because she could have testified about her statement and request. Indeed, the Court of Appeals noted that the trial judge told her that she could testify about it.

Why does this not make any sense?

(1) If the statement were hearsay, it is not admissible, whether or not she testifies. That is the law and the trial judge cannot create an exception that does not exist.

(2) She had a constitutional right under the Fifth Amendment not to testify and a right to have the judge instruct the jury that it cannot hold her silence against her. In other words, silence is not evidence of guilt.

(3) The judge’s unlawful exception was a manipulative and coercive effort to force her to testify against her will in violation of her Fifth Amendment right to remain silent and not have her silence held against her.

(4) If she had testified, the jury would have been presented with a classic he-said-she-said controversy in which he said he found her watch and the rock together in plain view at the top of the seatbelt crack on the seat right next to her, and she said he found it under the seat after she asked him to look for her watch. Not even the longest long shot Louie at Hialeah would put a fin on her fate in such a swearing contest.

(5) Who could deny that the odds on the outcome of that he-said-she-said swearing contest would change dramatically, if the jury found out that the deputy had previously testified under oath at the preliminary hearing, about a week after her arrest, confirming her statement. The suppression hearing was five months after her arrest and the trial was 18 months after her arrest, by the way. There can be little doubt that the jury would have believed her and disbelieved his plain-view testimony. Then their whole case falls apart.

(6) That is why her lawyer’s attempt to cross examine the deputy by impeaching him with his prior inconsistent statement under oath at the preliminary hearing was proper and legitimate.

To call this error harmless is disingenuous and absurd. But guess what? That is not even the right test. Why is it not the right test?

The trial judge’s order in limine and his ruling preventing her lawyer from impeaching the deputy with the deputy’s prior inconsistent statement under oath at the preliminary hearing took away her defense.

A defendant in a criminal case has a constitutional right to put on a defense and her right to do that was denied to her by the trial judge’s rulings and aggravated by the prosecutor’s closing argument in which he commented on her silence, which is forbidden by the Fifth Amendment. He also attempted to switch the burden of proof over to her to prove her innocence, which is a denial of due process of law under the Fifth and Fourteenth Amendments.

When the court and a prosecutor violate a defendant’s constitutional rights, the test presumes the error affected the outcome of the trial and the prosecution must rebut that presumption by proof beyond a reasonable doubt that it did not.That is a far different test from the one employed by the Court of Appeals.

There is no way the prosecution can meet its burden in this case. Therefore, the Court of Appeals must be reversed on this issue.

Until tomorrow . . .


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