There is now a question that all of us needs to know the answer to when we park our cars in our driveways this evening. The question is: Do you have a reasonable expectation of privacy in your car so that the government cannot go up to your car and place a GPS on it and then monitor where it is you go all day?

If you live in the area covered by the Ninth Circuit Court Of Appeals of the Federal judiciary, it depends on where you live. According to the majority opinion, there is probably more of an expectation of privacy for the owner of the car at the top right of this article than for the owner at the top left of this article. Why?

Here is the disturbing opinion. The following is the total treatment given this very important issue by the majority of the judges:

In order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of visibility from the street) or the nature of activities performed upon it.” Maisano v. Welcher, 940 F.2d 499, 503 (9th Cir. 1991). Pineda-Moreno offers no such evidence. To the contrary, the driveway had no gate, no “No Trespassing” signs, and no features to prevent someone standing in the street from seeing the entire driveway. Additionally, one of the investigating agents testified that “an individual going up to the house to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” If a neighborhood child had walked up Pineda-Moreno’s driveway and crawled under his Jeep to retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain. Thus, because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home.

Why in the world would these judges not see the actions of the government in this case as violative of privacy rights? I think Chief Judge Alex Kozinski puts his finger right on the button in this fantastic bit of writing:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect— and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

The second paragraph seems to be addressed directly to the judges who voted with the majority opinion. I wonder how many of them own BMWs.

Here is the whole dissent that is worth reading. It is really amazing to me how such an important right can be taken away in such a short opinion.

The dissent and the majority are both worth reading. The dissent is only 13 pages long and the majority opinion is only 10 pages long. I advise all people to read both opinions because you really need to know just how complicit the wealthy judiciary is with the government’s continue decimation of our rights to pursue whatever agenda they have. We also need to read it to see if there is someway that we can announce to the world that we believe we have a privacy interest in the car parked in our driveway.

The problem is that my advise will probably not be read by many who need to hear it because they are too poor to afford a computer and/or internet access. The problem of being poor affects them even in this way.

I went to the annual convention for the American Association For Justice that was recently held in Vancouver, British Columbia, Canada. It was a great time hanging out with other attorneys interested in justice in both the criminal and the civil courts. One of the guest speakers was Representative Bruce Braley. He is a congressman from the 1st District in Iowa. He is also a former trial lawyer who has taken his fight for justice to Congress.

Regardless of your thoughts about the Health Care bill nobody should be in favor of placing arbitrary caps on recovery for the killing of another person by the negligence of really bad doctors but that is exactly what Republicans tried to do. These Republican-sponsored immoral laws are nothing more than unconstitutional attempts at denying injured people and their survivors access to the courts.

Really bad doctors and, more importantly, their insurance companies know that if there are arbitrary limits imposed by the government as to what a person can recover for the negligent killing, maiming or otherwise injuring of a person by a really bad doctor or group of doctors there will be fewer and fewer of these cases taken on by attorneys. The reason is that attorneys for the injured and survivors have to incur enormous expense out of their own pockets in order to prove up the case. There are economic factors to be considered in every case and if the costs are more than the potential recovery even the most idealistic of attorney will have to pass on these cases. The result is that the brain-damaged people, quadriplegics, paraplegics or the survivors of those killed by the negligence of really bad doctors will have no compensation. According to the Texas Medical Association, “lawsuit filings in most Texas counties have been cut in half since the passage of the 2003 reforms….” Do you really think there are fewer people being injured by really bad doctors? According to the same organization, “18,252 new physicians have been licensed in Texas” since the Tort Reform of 2003. During this same time, the population of Texas has continued to grow. More patients being treated by more doctors results in less medical malpractice?

What has Tort Reform brought us? Doctor’s malpractice rates have gone down and doctors are happy about that. But have the savings or even a portion of the savings been passed on to the consumer? Health care costs continue to rise. What result? More profits for these same really bad doctors and, strangely enough, for their insurance companies. As quickly as January 1, 2006, less than three years after Tort Reform was enacted in Texas, one insurance company in Texas paid “an ‘unprecedented’ $10 million in dividends to 2005 policyholders.”

That is what Republicans have been successful in doing in many states and now they are taking it to the Federal level. Here is a video clip of how Rep. Braley was treated by his “friends on the other side of the aisle” when he tried to point out how that the Republicans were trying to, once again, get some tort reform slipped into a bill.

In case you could not understand what the Republicans were yelling it was “trial lawyer”. It really is disgusting to see just how successful the corporations and businesses have been at buying and paying for the Republican party. Together they are laughing all the way to the bank while removing any possible way of really addressing the wrong done to victims and their families. They are not the only victims. The rest of us are also victims because we do not know who the really bad doctors are. By walking into any doctor’s office we are playing a very real game of Russian Roulette. But as President George W. Bush used to say “the business of America is business.” Even though he no longer is the leader of the Republican party, this video proves that they are remaining faithful to his marching orders.

The Republicans cannot stand anyone who could possibly hold a person responsible for their negligence. This is the party that claims to be the “pro-life party” and yet when it comes to this issue they choose to be on the side of profits over people just like their friends in industry do on a daily basis.

But of course, when they, or a relative, have a claim due to someone’s negligence they are the first ones to file suit: Former Republican Senator Rick Santorum’s wife. Current Texas Attorney General Greg Abbott It is truly disgusting to see how this “pro-life party” is so hypocritical on this issue.

It seems as if there has been a recent increase in accidents being prosecuted as criminal cases. Why is that? Maybe because the insurance was not enough to cover the damage done by the accident. Maybe it is because people feel that since someone died someone has to pay. This is a dangerous position for a prosecutor to hold. It is not dangerous for the prosecutor but it is for the rest of us. They become outraged by the death, however it occurred, therefore someone must pay. I think this is what might be happening in a case I currently have pending here in Denton County.

I was reminded of this problem when reading about an incredibly tragic case in northern California in which a man killed two young children while trying to pass a truck in a no-passing zone.

A state appeals court upheld a San Francisco man’s double murder conviction Wednesday for a crash in which he drove his SUV across the center line on Highway 12 in Solano County and slammed into an oncoming car, killing two children and badly injuring two other people.

Nicola Bucci, who worked as a chef at Google Inc. headquarters in Mountain View, was sentenced to 23 years to life in prison for the November 2006 crash near Fairfield. He was prosecuted for murder rather than manslaughter because he had previously been convicted of killing two people in a 1994 crash in which he fell asleep at the wheel.

In a 3-0 ruling, the First District Court of Appeal in San Francisco said there was evidence to support the jury’s conclusion that Bucci had known he was endangering lives when he sped up a hill on the wrong side of the road in a no-passing zone.

Two children in the Toyota that Bucci’s SUV hit were killed, 12-year-old Demari Hutchinson and 7-year-old Immanuel Callison, both of Fairfield. Immanuel’s brother Jordan was paralyzed from the waist down. His mother, Regina Jackson, was hospitalized for more than two months with multiple fractures.

Witnesses said Bucci’s eastbound SUV, traveling 65 to 80 mph in a 55 mph zone, had crossed into the westbound lane on the two-lane highway to pass two vehicles before slamming into the Toyota at the crest of the hill.

A motorist who approached the burning car said she had asked Bucci to help her pull out the driver, but that he had raised his hands in a gesture of futility and walked away.

Bucci told officers he must have fallen asleep. At trial, he testified that he had been dizzy from carbon dioxide after inspecting a freezer at work that day and had little memory of the accident.

Bucci’s lawyer challenged the trial judge’s decision to allow evidence of his 1994 fatal accident, arguing that it was irrelevant to the 2006 crash and would prejudice the jury against him.

But the court said the earlier accident, which resulted in a misdemeanor manslaughter conviction and jail sentence, could have shown that Bucci had known the dangers of driving when he was sleepy and had chosen to do so anyway.

Its incredibly sad but should it have been prosecuted as a crime? Should the prior accident have been admitted? Maybe for punishment but I cannot imagine the legal reasoning for it being admitted in the case in chief, even if the defense opened the door. It would clearly be thought of as character evidence in the minds of jurors. The danger of that happening is too high and should never have been admitted.

I really do not think that Mr. Bucci had a chance in this trial. Two children were dead and one was paralyzed. There was a prior conviction that should not have been admitted. I am sure there was rage and tears during the presentation of the State’s case. Another problem might have been that Mr. Bucci is the victim of an opportunistic prosecutor, who has nothing to lose by trying the case, ran with the case when they should have exercised prosecutorial discretion and let it be what it really was: a horrible accident.

Judge Lee Gabriel, who currently presides over the 362nd Judicial District Court of Texas here in Denton, has been informed that she will be appointed to occupy Place 7 on the 2nd Court Of Appeals. This chair came open after Justice Terrie Livingston was appointed by Governor Perry to be the Chief Justice of the 2nd Court Of Appeals when Chief Justice Robert Cayce resign from the position earlier this year.

This is quite an accomplishment for Judge Gabriel. I have not been able to find out who was the last person to serve on the Court from Denton County. It may have been never.

Judge Gabriel will be officially appointed within the next couple months. You see, Judge Gabriel was agreed upon by Republican leaders from the 12 counties whose cases are appealed to this Court. In addition to Denton, the other counties are Archer, Clay, Cooke, Hood, Jack, Montague, Parker, Tarrant, Wichita, Wise and Young. This same process was also how Justice Livingston became Chief Justice in the same Court. Can’t you just smell the smoke from the rooms where these decisions are made? Maybe not. Five of the seven Justices on the 2nd Court Of Appeals are now going to be women. My how times have changed. Maybe its potpourri we are now smelling from those rooms.

I have always liked practicing in front of Judge Gabriel. She knows how to conduct a trial. My experience has been that she has consistently been informed on legal issues that have surfaced in my trials. Even small details from recent court decisions are at her instant recall. She has a reputation as a “hanging judge” but my experience has been that she will not hang my client if they have a compelling story. However, if there is no good story and only bad facts, well, as they said in that salsa commercial “get a rope”. I have seen her unload on clients but I have also had her be compassionate towards clients who have addictions and are trying to fight them.

Please do not get me wrong, she is not a friend to citizens accused of crimes. She was a prosecutor in Denton County prior to being a judge and she still has those leanings, but you know you are facing that when you have any case in front of her.

So, congratulations Judge Gabriel. I am looking forward to reading your opinions when you grade my work.

It appears as if the Bobby Lozano case might be claiming another person who, like Bobby Lozano, was formerly in law enforcement. During the last week in April, Judge Carmen Rivera-Worley, judge of the 16th Judicial District Court in Denton, appointed a local criminal defense attorney as an attorney pro tem to review the perjury investigation of former Denton County District Attorney, Bruce Isaacks. This investigation was started by a referral from the Denton County DA’s office to the Texas Rangers after the Lozano trial ended. After the completion of their investigation a report was prepared and given to Paul Johnson the current DA and political enemy of Bruce Isaacks. Paul Johnson decided to request the appointment of an attorney pro tem after reading this report.

There are so many juicy tid bits to this case that are known by those of us in the small Denton County criminal justice community that simply cannot be shared. Suffice it to say that this story could easily end up being the 2010 Story Of The Year in the Denton County criminal justice community.

It seems as if the Denton County District Attorney’s office believes that their former boss lied when he testified last year during the Bobby Lozano trial. Mr. Isaacks was called by the defense to testify that the reason he dropped the murder case against Lozano back in July of 2004 was because two medical examiners had informed him that they believed Vicki Lozano had committed suicide. Apparently, both doctors currently deny having made any such statement.

The case is now handed over to Mr. Hank Paine of Marsh, Paine and Waddill. Hank is a friend and one of the first people to welcome me to the Denton County Criminal Defense Bar back in 1997. The criminal defense bar back then met once a month in the bar at the old Holiday Inn here in Denton. Our monthly meetings drew about six of us on a good day. Thankfully, things are different now.

Hank has been a prosecutor and has been appointed as a special prosecutor in the past. He is very experienced and has been board certified in criminal law since 1989. He knows what he is doing and I have no doubt that he will do a good job and follow where his conscience leads him in this case.

But, I would not want to be in his shoes. Any decision Hank makes will probably be criticized by some faction in the small Denton County criminal justice community. Being appointed as an attorney pro tem does distance the Denton County DA’s office from this prosecution. If he had been appointed as a special prosecutor he would have actually worked directly under the Denton County DA. As an attorney pro tem he is independent from the Denton County DA’s office.

For Mr. Isaacks’ part, he does not seem to be too terribly concerned about this development. He reportedly said “I imagine Mr. Paine will be able to wrap this up quickly, once he gets a chance to look at the evidence.” Apparently he has not hired an attorney to represent him stating “I agree that a man who acts as his own attorney is a fool. But I can’t say that it looks like I need one yet, I just want to get this thing wrapped up and over with.” I hope, for his sake, that he is right. Bruce made some political enemies while in office, one of whom is our current DA. I do not know how he treated Hank while in office but I hope, again for his sake, that it was good. I do know that Hank worked awfully hard on Paul Johnson’s campaign to defeat Bruce.

This story will be interesting to watch from the sidelines. Stay tuned. This could get real interesting if Bruce is indicted.

Well, if you are a conservative looking for a political cheap shot, the following video tells us all we need to know about how many Republicans view the role that criminal defense attorneys play in the criminal justice system:

If you are not familiar with the story here is the thumbnail sketch: Eric Holder hired nine attorneys to work in the Justice Department that had represented terrorism suspects. Some people, seeing an opportunity to make some political hay, portrayed their good work as being illegitimate. A group calling itself Keep America Safe, went so far as to call the United States Justice Department the “Department of Jihad”.

Apparently the thinking is that if anyone would dare represent a person accused of being a terrorist then they do not deserve to serve as a prosecutor for the United States. According a spokesman for Keep America Safe, “[t]hese lawyers did far more than represent criminals. They have propagandized on behalf of our enemies, engaging in a worldwide smear campaign against the CIA, the U.S. military and the United States itself while we are at war.”

This attitude toward criminal defense attorneys is not limited to the Federal level. In the recent Republican primary election here in Denton County, two races were filled with attempts on the part of incumbents to throw their challengers under the bus because they were criminal defense attorneys and were supported by criminal defense attorneys. A sitting judge and the current elected District Attorney sent a very clear message with their campaign mailers. The message was that the work that criminal defense attorneys do is illegitimate and if anyone would dare engage in this time honored profession they forfeit any possible hope of ever serving the public in either of these offices. The plan worked for the Denton County District Attorney but did not work for the judge. This was not the first time this tactic has been taken in Denton County elections. It is a tactic that should be viewed by everyone, not just attorneys, as a direct attack on the justice system.

On the Federal level there was a quick negative reaction from Republicans to this illegitimate tactic. Senator Lindsey Graham, with whom I have had problems in the past which I documented on this blog, stood up to these out of control Republicans. I was suprised by his reaction considering how much he was against informing terrorists of their rights. Senator Graham made the following noble statement about the advertisement: I’ve been a military lawyer for almost 30 years, I represented people as a defense attorney in the military that were charged with some pretty horrific acts, and I gave them my all. This system of justice that we’re so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer.

Graham was joined in his denouncment of this advertisement by Republican attorneys who signed a letter calling the tactic “shameful”. Their letter pointed to one of the high moments in criminal defense history in this country. Before he was our second president, John Adams’ defended British soldiers charged in the Boston Massacre. The letter stated that the example of Adams shows us that “zealous representation of unpopular clients” is an important American tradition. Senate Armed Service Committee Chairman Carl Levin told The Cable, speaking of those attacking the DOJ lawyers, “[t]hey probably would have called President John Adams a terrorist too, because he defended the British soldiers who killed Americans at Bunker Hill.”

Here is the full content of the letter:

The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.

The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department’s strengths.

The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.
Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantánamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.

The Republican lawyers signing this letter included former Independent Counsel Kenneth Starr, Deputy Attorney General Larry Thompson, Peter Keisler, who served as acting attorney general during President Bush’s second term, Matthew Waxman and Charles “Cully” Stimson, who each served as deputy assistant secretary of defense for detainee affairs, Daniel Dell’Orto, who was general counsel for the Department of Defense; and Bradford Berenson, who worked on the issues as an associate White House counsel during President Bush’s first term.

Politicians who engage in these tactics know that there is a segment of the electorate to whom this type of campainging appeals. It is a baser voting instinct to which they are appealing and it needs to stop. This voting segment thinks all criminal defense attorneys are snakes in the grass and do nothing but attempt to decieve and mislead juries. Campaign material like that sent out by the Denton County District Attorney and judge continues to feed this idea and sends the very clear message that our work is repulsive. Something needs to be done about these political attacks on the criminal defense profession.

Here is one suggestion. In the Preamble of the Texas Disciplinary Rules Of Professional Conduct it states that it is a lawyers responsibility to “demonstrate respect for the legal system and for those who serve it, including…,other lawyers….” (emphasis added) The actions of this particular Denton County Judge and District Attorney during the most recent Denton County Republican primary election fail to live up to this high standard. The State Bar Associations should crack down on this type of campaign material. I doubt it will ever do it but we can always hope.

Until then, criminal defense attorneys will continue to be the segment of the Bar that many judges, lawyers and Republicans will despise, that is until they need us. Fortunately for us, many judges, lawyers and Republicans continue to put themselves in situations that require them to hire one of us. Fortunately for them, we will always be there to help them regardless of what they have said about us in the past. Then they will be glad that we have a system in which they are allowed to hire us to help in defending them against a judicial system loaded with people (prosecutors and judges) who hate them and their lawyers. They might have a hard time adjusting to that feeling of abhorrence but we are used to it.

Governor Perry has signed a pardon on a man who has been cleared by DNA evidence. Another man exonerated? What is the big deal? It happens all the time, especially in Texas. With the frequency with which this happens in Texas it is almost to the point that these news items do not even get a raised eyebrow anymore. However, this story is different. This story began in 1985 and it is finally over with the signing of the pardon by Governor Rick Perry. Yes, the story is finally over but it is too late for Timothy Cole. The pardon was posthumous. Timothy Cole died WHILE IN PRISON serving time for the crime for which Gov. Rick Perry just pardoned him!!! The injustice will never be corrected no matter how many padons are signed or apologies are extended to the family.

This story is so disgusting that it should make all of us recommit to holding the government to the high standard that the law requires before the government has permission to punish a fellow citizen. This man died after wasting 14 years of his life in prison for a crime he did not commit. What is really disgusting is the fact that the man really responsible for the crime started writing to the court and the prosecutors 4 years BEFORE MR. COLE DIED!!! How do you think these letters were received? I am sure with the same scepticism that Mr. Cole’s claims of innocence were received. Even the courts view these cases in such a way as to not hold the government to its standard of proof. Why? Because most judges are ex-prosecutors. Some of them act as if they still think it is there sworn duty to continue prosecuting. I wish people would realize that these are real people whose lives are destroyed because of a system that many times could not care less.

Here is the story done by National Public Radio, the best source for news in my opinion, on this sad case. The Lubbock Avalanche-Journal received rewards for its work on this case. Here is how the story was developed by them: Part I Part II Part III. Part III is especially moving because you will see the moment that Timothy Cole’s family found out that the DNA came back implicating Jerry Wayne Johnson. It is hard to watch or at least should be. If you do not find this hard to watch I have to question your humanity.

My concern for how the victims of these crimes are manipulated by law enforcement is so well laid out for us in this more detailed description of the case. And here also. This young lady did the best she could. She told law enforcement that the man who raped her disgusted her because he smoked the whole time he was raping her. Timothy Cole had asthma and was not a smoker. That did not fail to even give cause for the crusaders, otherwise known as cops, prosecutors and judges, to pause to think they might have the wrong man.

I feel so sorry for the victim who is now stuck with the thought that her identification testimony helped put Timothy Cole in prison for what turned out to be a death sentence. The guilt she will carry with her for the rest of her life is too hard to imagine. I am sure that the “get-tough-on-crime” crowd would simple tell her to get over it and assure her that this does not happen often enough to change the system we have. “It is the best justice system in the world but it has flaws with which we have learned to live. You should to.” I can just imagine them saying something like that to her. Actually, we do not have to imagine. The testimony of the victim is chilling enough:

She began to cry, alone in her home, overwhelmed with guilt as investigator George White gave her the news, she testified.

“‘You shouldn’t feel bad about this, Michele,’” she said White told her. “‘[Cole] let himself be in that lineup.’”

She said he later added, “It’s OK. He had asthma. He was going to die anyway.”

The disregard Detective White has for human life and suffering is disgusting and he has no place being in a position of trust. Now, what about a sentence for him? I would be willing to bet that Mr. White has been described as “a real man’s man”, “a police officer’s police officer”. Not the type to be afraid of anything or anyone. Funny how he did not show up for the hearing in this case.

When will the madness end? I have very little hope for these results to be less often for several reasons. First, because the legislatures and the courts are so reluctant to implement the changes that research of the 250+ exoneration cases has proven.

A second reason for my lack of hope is that the system is full of Detective George Whites. The Detective Whites of the legal system are not only in the police departments they are also in the prosecutors’ offices and sitting on the bench of the courts that hear these cases. The judges have the best opportunity to affect changes by actually applying the rules of evidence as they should. What has happened is that the rules of evidence have been loosened, especially in sexual assault cases, to allow the admission of questionable testimonial and scientific evidence.

A third reason is that, as we have seen before, American jurors are no longer willing to let ten guilty go free so that one innocent would not suffer nor are they willing to apply the law of the presumption of innocence and proof beyond a reasonable doubt. The idea of a person getting away with a crime is more unbearable than a person being punished for a crime they did not commit. Ben Franklin said “those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

I cannot help but notice the timing of this pardon was the day before the gubernatorial primary election in our great state. I am sure that the people involved in the prosecution of this case are, in all likelihood, supporters of any Republican governor because they are tough on crime.

In case you care, here is a a PDF document giving some of the details of all of the 250 exonerees. May we strive to improve the system so that more innocent people do not have to suffer.

Anyone who continues to maintain, in the face of this evidence, that we have never put to death an innocent person can only be doing so for ideological reasons. Please, PLEASE, when you serve as a juror, make the government prove their case beyond a reasonable doubt. Do not believe that just because someone is on trial means they did something.

Do you really care?

According to a February 4, 2010, press release from The Innocence Project, Freddie Peacock, “a Rochester, New York, man who was wrongfully convicted of rape 33 years ago is being exonerated with DNA testing today, in what the Innocence Project said is the 250th DNA exoneration in the United States.

“Freddie Peacock, 60, was convicted of rape in December 1976. He was sentenced to up to 20 years in prison and released on parole in 1982. He tried to remain on parole because he thought he would never be able to clear his name if he was released from state supervision. For the last 28 years since he left prison, he has fought to prove his innocence even though he was no longer incarcerated.”

Here is a link to the complete story from the perspective of Maggie Taylor, Senior Case Coordinator at the Innocence Project.

Mr. Peacock is a real person who has been abused by the system. He has lived a painful life that nobody would want to live. Here is how one hero described his life:

“‘Freddie Peacock was released many years ago, but he hasn’t been truly free because the cloud of this conviction hung over him,’ said Olga Akselrod, the Innocence Project Staff Attorney handling the case. ‘Nobody in the U.S. who was exonerated with DNA testing has spent this many years outside of prison fighting to prove his innocence. Today, the decades-long nightmare that Freddie Peacock and his family have endured is finally over.’”

We need to stop these things from happening. There is no way to make sure that this never happens but we can certainly lessen the frequency with which it has happened. The Innocence Project has studied the wrongful convictions and has found that the following areas need to be addressed with changes in legislation:

Eyewitness Misidentification
Unvalidated or Improper Forensic Science
False Confessions / Admissions
Government Misconduct
Informants or Snitches
Bad Lawyering

You can go to this link to see how each one of these issues has negatively affected the criminal justice system. You can follow internal links to find out what can be done about it and, more importantly, what you can do about it. You might be saying that none of this could ever happen to you but I am sure that Mr. Freddie Peacock and the other 249 exonerees thought the same thing. Oops, make that “the other 250 exonerees” as the Innocence Project’s count is now at 251 as of March 4, 2010, at 4:50 p.m. The documented suffering just keeps on increasing.

Do you care?

Here is a very interesting study. I am not the only one to have suspected for a long time that many reported cases of child abuse are absolutely false. I am wondering whether we are getting better at weeding out the false reports or if the occurences of child abuse are actually decreasing.

From my recent experience, I think there is still a huge problem with false allegations. It should scare all of us that a person can be found guilty simply on the word of a child whose story changes over time and for which there is no corroborative evidence.

Here is a local story that should frighten all of us. This North Texas man’s life was destroyed over an allegation by an adopted daughter. It took him two years to fight it but a jury did find him not guilty. As he said about his accuser “[l]ooking at her in court…,she had no clue of the repercussions…. She doesn’t realize what she has caused, nor do I think she really cares what she has caused.”

For many of these children, they have no idea and they have no fear. They can lie with impunity. What do you think the chances of a child being prosecuted for Aggravated Perjury if we were ever to catch them in a lie or even have them admit that they lied under oath. A little over a year ago I caught an accuser in a lie about sex. It would qualify more as Perjury and not Aggravated Perjury but the point is she is willing to take the oath to tell the truth and then proceed to lie. And it is not simply that she is a liar but she lies about sex!!!

The problem is that most people are willing to sacrifice any person who is accused of these types of horrible acts simply because they were accused. In a recent jury trial on one of these cases I had asked prospective jurors whether they agreed with William Blackstone that he would rather have ten guilty go free than to have one innocent suffer. Out of 54 people only about 5 agreed with the statement. The rest agreed with a couple of the men on the panel who said not only would they be willing to sacrifice another innocent person but they would also be willing to sacrifice themself to make sure that ten guilty child molesters were punished.

That is scary. The idea of the presumption of innocence in these types of cases especially is a legal fiction. Simply being charged with an offense like this is enough for most people to send you away. They do not need evidence. They do not care whether there is physical evidence. They do not care whether there is testimony of someone walking in on them committing the offense. They do not care whether evidence offered by the State is contradictory. They do not even care whether a single case has all of the above. All they want to know is how can the defense attorney prove that the child is lying and why would they lie. If we cannot do that then we know what the result will be.

The sad thing is that years later the child may finally come to the understanding that they were never abused and because of their testimony someone’s life has been ruined. But, most people really do not care about that. They are willing to sacrifice someone’s life just in case they did what they are accused of doing.

Here is such a case in which the state turned on one of their own, a police officer, and sent him away for 20 years only to later find out that it was all false. Now this man’s children are stuck with the awful idea that their testimony took away the best part of their father’s life. They were pawns in the hands of their mother and the prosecutor’s office. I am sure this man will try to assure them that it was not their fault. But, I cannot imagine that this will comfort them. It is so incredibly sad that there will be, in all likelihood, absolutley no repercutions for the wife, the detective or the prosecutor.

The only way we are going to limit these tragedies from happening in the future is for all of us to take the presumption of innocence seriously. We all need to hold the government to the standard of beyond a reasonable doubt before giving permission for them to punish one of us. Unless and until we start to actually hold the government to this high standard there will be lives sacrificed just in case the allegations are true. I just hope it never happens to you.

How can we avoid the admission of false confessions in a trial? One suggestion I have is to adopted the rule dealing with confessions in the Jewish judicial system.

The basic rule in Jewish law regarding confessions by the accused is that they are not admissible in court proceedings, EVER! Under Jewish law, any party involved in the litigation before a court was not eligible to testify. This meant that the court would have to rely on the testimony of disinterested witnesses and independent evidence when deciding what their ruling on the case should be.

In fact, the Talmud did not even have a provision for the interrogation of criminal suspects. This eliminates the necessity of courts inquiring into whether the confession is credibile.

In our current system, police officers are allowed, with court approval, to use any psychological means at their disposal and within their ability in order to get a suspect to confess to a crime. Any criminal defense attorney who has been practicing longer than ten minutes will be able to tell you that lying, trickery and the making of false promises of leniency are tactics used by police in most cases in which confessions are obtained. The courts never seem to call into question the reliability of the confession extracted by these means. That these confessions are reliable is a legal fiction. Confessions obtained by these means are inherently unreliable and adoption of the Jewish approach to confessions would eliminate the problem of admitting unreliable confessions into evidence.

Why did the Jewish courts believe this was the best way to handle confessions? Several reasons for this rule have been given through the centuries. Maybe the greatest medieval Jewish Torah scholar, Moses Maimonides (1137/8-1204) argued that confessions should not be admitted because depressed people might confess to a crime they did not commit hoping to be found guilty and then executed.

Rabbi David ben Zimra (1479-1573) believed that a person’s body and life are not their own to dispose of as they desired. These were divine gifts. Therefore a confession was not admissible because it would have the affect of forfeiting their body or life which only God could do.

Rabbi Josef ibn Migash (1077-1141) argued that if confessions were admitted into evidence, courts might be unduly influenced by the confession. This might lead to the court disregarding evidence that contradicts the confession. This is, of course, what I experienced in the war story I shared a couple posts ago. Over reliance on a confession has led to many false convictions.

According to DePaul Law Professor Steven H. Resnicoff, the Jewish rule regarding confessions has three benefits:

First, the rule spares the Jewish court system the fact-sensitive and time-consuming process of evaluating the “voluntariness” of a confession by examining the circumstances in which the confession was made.

Second, the rule largely eliminates any incentive for police to wrongfully coerce a confession and then attempt to convince the court that it was voluntarily made.

There is yet a third, more fundamental distinction between the Jewish and secular approaches. Secular authorities often assert that the constitutional right against self-incrimination reflects the basic sanctity of the individual. Nevertheless, by cynically allowing confessions to be elicited by trick and deception, secular law makes a mockery of such pretensions. Under Jewish law, no ruse changes the rule: a criminal confession is not admissible. Not only is a Jewish criminal defendant presumed innocent, but he may not be duped – or even permitted – to testify against this presumption; he may only be convicted on evidence provided by others.

One more benefit would be that there would be absolutely no more wrongful convictions based on false confessions. If we could make this one change to our criminal justice system it would provide great benefits. But, I am not holding my breath. Convictions by confessions are incredibly efficient. In my experience the courts are more concerned with efficient disposition of their docket than they are with making sure justice is served. I have never heard a court express concern that a confession might not be reliable. They are fine with officers doing whatever it takes, short of physical violence, to extract a confession because, as we all know, nobody would ever confess to something they did not actually do.

This continuing attitude from the bench means we will continue to falsely imprison people who have been coerced into confessing to crimes they did not commit. It is a truly sad state of affairs.