Archive for the ‘Orwellian Threats to Rights’ Category

March 3rd, 2010

Tim Cole Pardon Granted by Gov Rick Perry: Will Lessons be Learned?

Of course, the big news today when you’re talking Governor Rick Perry is that he’s just won the Republican Primary without the need of a runoff.   Guess that makes sense. 

Finally, Tim Cole is Pardoned

However, on Monday something else happened.  Governor Perry signed the pardon of Timothy Cole, the first person in the State of Texas to be cleared of wrongdoing by DNA evidence after his death. 

If you follow this blog, then you’re aware that there was some problem getting here: arguments were made that the Governor had no legal right to grant this pardon, the Attorney General said so, and there was a major brouhaha before justice was done. 

What Will We Learn from the Tim Cole Tragedy?

Now that the pardon has indeed been granted, and the family of Tim Cole has achieved victory in his vindication, there are still questions that should be asked — lessons to be learned from the life of Tim Cole. 

Here are a couple:

1.  At Grits for Breakfast, there is much discussion on how many more Tim Coles are there?  How many more false convictions are on the books right now, with innocent men and women behind bars standing firm on their innocence?

It’s a good question.  With crime labs in the chaotic state they are these days, it’s debatable whether or not DNA testing can be trusted in cases pending before the court.  Who is going to undertake the process of vindication through DNA testing of folk who are already behind bars?  The Innocence Project of Texas does this — but their resources are limited, and they have to choose their cases accordingly. 

Tim Cole Lesson No. 1:  There’s a way to get innocent folk out of prison through DNA testing, but we’ve got to figure out how to do it, and who is going to pay for it – and how to secure their release through appeal or pardon once the test results are back.  Part of the expense is the judicial process AFTER the test reveals their innocence.  It’s not just a matter of taking a lab report to the prison and getting someone released. 

2.  At the Burnt Orange Report, discussion is had over Tim Cole’s case showing us once again how eyewitness identifications simply cannot be trusted as reliable evidence.  In Cole’s case, a young woman traumatized by rape picked Tim Cole in a photo lineup.  She was wrong.  The man who raped her later admitted the crime, and many years later, that victim came face to face with her perpetrator – all as part of the efforts to exonerate and free Tim Cole. 

Tim Cole Lesson 2:  Eyewitness testimony simply should not be trusted as evidence in a criminal case.  This should be absolutely paramount when it is the key piece of evidence that the State is using to put someone behind bars for any period of time, much less placing them on Death Row.  Human beings do not have trustworthy recollections of events, this has been proven time and time again.  When will the judicial system finally recognize just how flawed finger-pointing is?  Who knows.  Until they do, criminal defense attorneys must fight, and fight hard, against the probative value of any “eyewitness” — and perhaps pointing the finger at the Tim Cole case may help place this “evidence” in its proper perspective.

January 27th, 2010

Can We Trust the Prosecution to Play Fair? No.

When you watch TV, the prosecutors are always the good guys.  Just check out Law & Order, for example.  Heroes, right? Well, things are different out in the real world.

Policeman Gives Sworn Statement, Dallas County Prosecutor Told Him (as Sole Eyewitness) Who to Point Out At Trial

Just this past week, another Texas scandal involving the Dallas County District Attorney’s Office is brewing. The ONLY eyewitness in a trial back in 1995 has now come forward, and given a sworn statement that the prosecutor coached the witness to take the stand and point the finger at defendant Richard Miles.

The “eyewitness” is now a police officer in Oklahoma, has signed an affidavit just this month, swearing that he was told where Mr. Miles would be sitting in the courtroom, and that he needed to point the finger at this man — even though the guy in the courtroom didn’t look like the man that Miles saw shoot a pistol into a car, killing one man and injuring another.

Miles isn’t going to be released based upon this Oklahoma cop’s affidavit because he’s already out — freed after 14 years behind bars — because a memo was discovered in an old Dallas County District Attorney file that identified someone else as the suspect … a memo that was never, ever turned over to the defense.

And this happens everywhere, apparently, since just this past week, over in Fort Lauderdale  ….

Before someone starts labeling this a rogue incident, an exception the rule of prosecutors being trustworthy, consider this new story that hit the stands this same week.  Over in Florida, the Public Defenders Office – supported by the Broward County Association of Criminal Defense Lawyers – has made public a letter that was sent to the office of State Attorney Mike Satz.  In it, the Public Defender’s Office flat out accuses the Florida prosecutors of routinely playing outside the rules.

The letter charges, in part, that the state attorneys there are not only routinely holding back evidence from defense attorneys that is helpful to the defendants, but they’re also covering up for bad cops and helping out those who come through their offices who happen to be of a higher socioeconomic level — the rich and powerful. (And you thought this only happened on Miami Vice reruns.)

The letter was sent just last Tuesday by Public Defender Howard Finkelstein, where he writes that he’s been forced “…to the inescapable conclusion that the [Florida] State Attorney’s Office, either through neglect or by design, has been non-compliant with its obligation to disclose favorable evidence to criminal defendants.”

Just Some Bad Actors, or Corruption in the System?  Hmmmm……

Of course, some might say that Broward County is a bad example.  It’s been labeled corrupt, and over the past two years alone there have been five arrests of elected officials, six cops have been sent to prison, and the city manager’s been tagged for embezzling a half-million bucks.

But then, maybe they haven’t been watching the Dallas County District Attorney’s Office much.  Heck, just last month the county commissioners voted to settle the lawsuit brought against Dallas County by a former investigator in the DA’s office, who had sued for wrongful termination alleging that he’d been fired for reporting the unethical behavior in the Dallas DA’s Office.

Curiouser and curiouser….

January 18th, 2010

Will the US Supreme Court Reverse Itself on Defense Examination of Crime Lab Techs?

Last week, we pondered the trustworthiness of crime labs in Texas – or more accurately, how inaccurate their results can be.  One good bit of news in all that mess is the ruling of the United States Supreme Court in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), where just this summer the Highest Court in the Land decided that criminal defense attorneys could cross-examine lab techs on their lab reports.

For many, it was shocking that defense attorneys weren’t already allowed the chance to question lab technicians on the witness stand about their lab results.  (One more example of how CSI isn’t based in reality.)  Well, here’s something even more shocking: the U.S. Supreme Court may change its mind.

That’s right.  The Supreme Court may take back the right of a defense attorney to cross-examine crime lab pros. 

Melendez-Diaz was just argued this summer.  (Interestingly, Massachusetts’ Martha Coakley argued on behalf of the prosecution – you can watch the oral arguments at Oyez.org.  Yes, this is the same Martha Coakley that is rumored to be losing her battle with Republican Scott Brown in tomorrow’s special election to fill Teddy Kennedy’s vacant Senate seat.)   

Well, the U.S. Supreme Court granted – and heard – oral argument in another case just last week:  Briscoe v. Virginia (07-11191).  Briscoe is a consolidation of two cases, and it was argued by the Virginia Solicitor General for the prosecution.  The two cases in Briscoe both dealt with ”certificates of analysis” from state crime labs without any forensic scientists taking the witness stand at the defendants’ trials.  At issue, can the prosecution present evidence of illegal drugs (which is what the certificates claimed were found) without calling the human beings who did the forensic testing? 

In these situations, criminal defense attorneys have to make a decision – should they stipulate to the certificates as being truthful, without questioning the lab techs?  Sometimes, this may be smart.  Sometimes, a good defense lawyer wants that crime lab tech on the stand.

What Will Happen to Melendez-Diaz now? 

There are critics who argue that Melendez-Diaz was a wrong decision, that it was decided too fast and without sufficient consideration of the expense and confusion that forcing forensic technicians out of their labs and into courtrooms would raise.  They’re excited that the Supreme Court will correct what they see as an error — particularly with Justice Sotomayor on the court now. 

However, there are a great many criminal defense attorneys that aren’t happy about these rumblings.  As Justice Scalia pointed out during last week’s Briscoe arguments, not putting those crime lab reports up for cross-examination is tantamount to “trial by affidavit.” 

Without examination, these untrustworthy crime lab results are merely “trial by affidavit.”

Look, there’s a reason to put a human on the stand in these situations.  Crime lab analysis is scientific in nature and there aren’t many scientists in the courtroom, usually.  Those pieces of paper that pop out of labs are already known to be unreliable, and defense attorneys MUST have the opportunity to have that crime lab technician or forensic scientist on the witness stand to explain what was done, and why the results are (or aren’t) accurate. 

We cannot bow to worship crime lab reports as inviolate.  Let us only hope that the United States Supreme Court uses Briscoe to support Melendez-Diaz, and not to erase the victory for justice that Melendez-Diaz represents.

January 13th, 2010

Can We Trust Texas Crime Labs? NO.

Many, many, many criminal defense attorneys in the State of Texas cast a wary eye at any test results coming out of crime labs in this state, because all too often, state forensic evidence has shown itself to be faulty.  Unlike the CSI shows on TV, all sorts of crazy stuff appears to happen in the real world of Texas forensic laboratories.

For example, just last month the Houston Chronicle reported that the fingerprint comparison unit of the Houston Police Department was being investigated for untrustworthy results, “shoddy” work, and a backlog of over 600 cases.  (We’ve already reported on how FINGERPRINTS just aren’t reliable anymore.) 

Forensic Lab Oversight Agency Efforts are Being Questioned

However, the media spotlight on the execution of an innocent man here in Texas, Cameron Todd Willingham, really fueled the fire — why wasn’t the “arson” evidence refuted as faulty back at trial time?  Suddenly, the little known Texas Forensic Science Commission (an agency established to oversee the state’s crime labs) was in the hot seat. 

And the Texas Forensic Science Commission doesn’t appear to like this much. 

Under the Texas Open Records Act, the news media can gain access to all public information held by the Texas Forensic Science Commission.  However, it’s been easier said than done since the FSC has used the lingo within that statute to try and hold onto its files, holding on hard.  The Fort Worth Star Telegram asked for information, and the FSC fought against turning stuff over to the paper. 

The Commission’s white-knuckled grip did get released a bit, after the Texas Attorney General (yep, the state’s highest attorney had to get involved) ruled that the FSC had to release some of the info that the newspaper requested, as it was indeed, “public” information.  The Fort Worth Star Telegram finally got a part of what it asked for — a week after the AG said they had to do it.

Forensic Science Commission’s Revelations Are Serious and Worrisome

What was included in the information that the FSC was forced to release?  Well, of immediate interest to those of us practicing in the Dallas area, the revelation that someone who used to work at the Southwestern Institute of Forensic Sciences was a whistleblower, telling the FSC all about faulty DNA analysis, tainted rape kits, and unreliable blood stock.  That’s right — bad forensics right here, at the Dallas crime lab.  

This is all very, very scary and should be concerning all of us.  Both the police and the state prosecutors as well as  juries and the public at large tend to bow down to Forensic Evidence as if it were, indeed, revelations from On High.  Don’t forget that the Austin Police are going so far as to use DNA evidence to track down burglars these days ….

What Can We Do?  Criminal Defense Lawyers Can Fight Back Now – Thanks to the United States Supreme Court

Meanwhile, the United States Supreme Court is getting involved.  As we’ve discussed, whether or not police lab experts can be cross-examined by criminal defense counsel was decided this summer in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).  The highest court in the land opined that it is a violation of the Confrontation Clause of the Sixth Amendment not to allow the defense attorney to examine the forensic scientist who created the analysis or report that the state has placed into evidence.

Of course, this is far from enough to solve this problem — the ability to cross-examine forensic scientists on their analysis in the witness stand means an innocent defendant has already undergone investigation, arrest, and has been forced to trial in order to vindicate himself from bad science.   We need more. 

However, between the media’s efforts and a strong defense attorney there’s more hope now than ever before.  Certainly more now that there was years back, for Cameron Todd Willingham.

December 30th, 2009

DA Watch: Montgomery County Tweets DUI Arrests this New Year’s Eve

Over in Montgomery County, District Attorney Brett Ligon has announced that on New Year’s Eve 2009, law enforcement will post all drunk driving arrests on Twitter.  Actually, he’s been tweeting about drunk driving arrests – among others – for awhile now (since Christmas). 

This is getting lotsa attention for DA Ligon.

For example, plaintiff’s personal injury lawyers at Jim Adler & Associates — you’ve seen their ads if you watch any TV whatsoever — have already posted on this at their firm blog.  They call this a “sweet” idea, discuss how “shame” may be a great deterrent to the holiday car crashes caused by drunk driving, and then conclude their post (of course) with a reminder that if anyone wants to file a wrongful death or serious personal injury claim based on drunk driving, well … they DO do that kind of work. 

Techies and geeks interested in the tweeting aspects of DA Ligon’s brilliant idea are writing about this, too.  Gizmodo already follows the DA on Twitter (Ligon can be seen at twitter.com using the name “MontgomeryTXDAO”) — and they’re reporting they will be reading this “comedy goldmine in the making.”

It’s a story that is getting national media coverage.  MyFoxCharlotte is covering the story, quoting Montgomery County assistant district attorney Warren Diepraam as claiming he initially came up with the idea of tweeting all drunk driving arrests between Christmas Eve and New Year’s Day. 

Here’s some things that should be considered …like innocent victims suing for damages ….

1.  This isn’t being posted on a government site.  It’s been tweeted on a personal account set up at www.twitter.com.

2.  Anyone arrested for DUI is still innocent until proven guilty.  What happens to those who are later found innocent?  The “shame” of the tweet is already out there — and assuming arguendo that the tweet does cause harm and humiliation, then can the victim sue the twitterer individually for the harm done?  Remember, this isn’t a government account.  Can they sue the assistant district attorney, who so proudly claims the Shaming Tweet Strategy as his big idea?  Can they sue Twitter, too?

3.  What about expulsion of a drunk driving charge now the road?  Do expulsion orders need to include social media sites now?

October 14th, 2009

Cop Watch: Dallas Cop Kept Police Dept Files in His Garage … Now 2000 Cases Being Questioned

Detective Mickey East is working the auto pound desk today while his Dallas Police Department colleagues are going through his files. 

Seems that Detective East — a career cop, with over 35 years of service to the community — has made a habit of taking work home and keeping it there.  Specifically, police files.  You know, where there are witness statements, lab reports, notes from cops, etc.  Things that attorneys sometimes call evidence.

And there are a lot of files.  Over 2000 of them.  All family violence cases filed since 2005.  Family violence — where wives and  mothers and girlfriends and children are beaten and abused.  Pretty important stuff. 

Right now, the Powers That Be are checking the files over because of a concern that things might not have been handled properly.  There are rules — and there have always been rules — on how the cops are supposed to handle evidence.  Keeping it in your garage isn’t cool.

It’s a Big Huge Chaotic Mess

Now, this might be one thing if the files were all neatly organized and color colded, sealed in boxes, and kept stacked against the garage wall next to the leaf blower.  Bad, but not a nightmare.  If Adrian Monk had files in his garage, we probably wouldn’t lose sleep over the file contents, right?

Well, forget that.  The paperwork is a chaotic mess.  It’s not clear if there is any system at all to the arrangement, Detective East just brought in about a dozen boxes filled with paper, all cascading over with documents and some labelled by year.  East turned them over to his colleagues after an internal tracking system picked up that some case files weren’t in the Dallas Police Department proper. 

Right now, the cops are going thru the files in some tension filled conference room down at headquarters .   The District Attorney is already telling the media that while they’re waiting till the cops finish their run-through of the files, the DA already thinks there will be some new family violence cases filed … maybe a lot of family violence cases. 

This Today Right After Richard Miles Being Freed on Monday– What is Up with the Dallas Police Dept Filing System????

We’ll see.  Meanwhile, you read about this and you think back to Monday, when an innocent man spent 14 years in jail before the note written by a cop that told about the real killer’s identity, location, and confession to his girlfriend and you gotta wonder.   What ARE those Dallas police files like?  Sounds like there’s something rotten in Denmark in how the cops keep track of evidence, doesn’t it?

September 21st, 2009

Judge Watch: Court of Crim Appeals Says Not Unfair to Defendant Hood for Judge and DA to Have Affair During Trial

If you’re shaking your head in disbelief at this week’s ruling by the Texas Court of Criminal Appeals — well, join the crowd.  

When the news first hit that a trial court judge and the district attorney who prosecuted cases in her courtroom had had a long-standing sexual relationship, lots of folk were stunned.  And lots expected something To.Be.Done.About.This.  (See earlier post by this blog.)

Especially Charles Hood and his appellate counsel.  Hood was tried, convicted, and sentenced to death in a trial before Judge Verna Sue Holland with D.A. Tom O’Connell putting on the state’s case.   Seems pretty easy to think that Hood deserves a fair trial, right? 

Charles Dean Hood Sits on Texas’ Death Row, Knowing that During The Trial that sent him to death, the Judge and the DA were playing footsy

It isn’t even up for debate at this juncture:  trial court judge Verna Sue Holland and prosecutor Tom O’Connell, Jr. were involved romantically (yes — having an affair, a sexual relationship) while the capital murder trial of Charlie Hood was taking place.  Let’s think about that … shouldn’t this be strongly and swiftly punished? NOT allowed? 

Apparently not in Charlie Hood’s case.  This week, the high court has decided that Hood doesn’t get a fair trial because — wait for it — Hood should have brought it up earlier.  In an earlier writ.  Not making this up, folks.

What the heck?  Read what the Court decided — here’s the opinion and the dissent.

The highest state court on the subject just denied Charles Hood’s request that he have a new trial.  Here’s the Majority Opinion. Per Curiam, Not to be Published.   Not everyone agreed. Here’s the Dissenting Statement by Justice Cochran, who is joined by Justices Price and Holcomb.   The dissent sure makes sense — kudos to Justices Cochran, Price, and Holcomb.

What about the undisputed facts that the Judge and the DA BOTH LIED REPEATEDLY about having this sexual relationship? 

Here, the litany of facts listed in this week’s Dissent:

  1. Judge Verla Sue Holland of the 296th Judicial District Court of Collin County, presided over Hood’s capital murder trial.
  2. The elected District Attorney of Collin County, Thomas S. O’Connell, Jr., participated in the prosecution of Hood for capital murder.
  3. Judge Holland and Mr. O’Connell were involved in an intimate sexual relationship prior to Hood’s capital murder trial.
  4. Prior to the capital murder trial-and during the appellate and post-conviction proceedings-Judge Holland never disclosed her relationship with Mr. O’Connell to Hood.
  5. During these proceedings, Mr. O’Connell never disclosed his relationship with Judge Holland to Hood.
  6. Judge Holland and Mr. O’Connell took deliberate measures to ensure that their affair would remain secret. . . . Mr. O’Connell could not recall telling anyone, except possibly his sisters, about his romantic relationship with Judge Holland. Judge Holland told no one.
  7. Based only on rumors of an affair, Hood’s former habeas counsel decided to look into the matter prior to filing the initial habeas application. In 1995-96, Hood’s investigator, Tena S. Francis, conducted extensive records research. She reviewed divorce records, records obtained from the Office of Elections Administration, and case files in the Collin County District Clerk’s Office. Ms. Francis interviewed members of Hood’s defense team, attorneys practicing in Collin County, and Judge Holland’s former husband, Earl Holland. She attempted to interview Judge Holland’s bailiff, but he refused to discuss the judge’s personal life with her. She contacted the State Commission on Judicial Conduct.
  8. Ms. Francis was unable to develop any concrete evidence of the affair.
  9. On June 27, 2005, shortly before Hood’s scheduled execution date, A. Richard Ellis, former counsel for Hood, contacted Judge Holland. She refused to comment on the allegations that she had a romantic affair with Mr. O’Connell. On the same day, Mr. Ellis contacted Mr. O’Connell. Mr. O’Connell denied that he had a romantic affair with Judge Holland.
  10. On June 3, 2008, Hood received the affidavit of Matthew Goeller, a former assistant district attorney in Collin County, Texas.
  11. Mr. Goeller’s affidavit marked the first time that a former employee of the District Attorney’s Office who had worked there during Mr. O’Connell’s tenure was willing to speak on the record and under oath about the relationship.
  12. Mr. Goeller stated that the romantic relationship between Judge Holland and Mr. O’Connell was ongoing when Mr. Goeller began working at the District Attorney’s Office in 1987. Mr. Goeller could only assert that the relationship was “common knowledge,” not that he personally knew of any romantic interactions. 
  13. In June 2008, counsel for Hood retained Toni Knox, a private investigator. She reviewed the work previously conducted by Ms. Francis and then interviewed approximately two dozen individuals in the Collin County area who seemed likely to have some knowledge of the Holland-O’Connell affair.
  14. The witnesses could only attest that they had heard rumors about the affair.

Hood’s Life is at Stake –  as is the Reputation of Our State’s Criminal Justice System

A man’s life is at stake here.  Charles Hood is sentenced to die as a result of the trial overseen by Judge Holland and based upon a case presented by her lover-prosecutor.  Surely a new trial is warranted here, and the idea that a writ should have been filed sooner and therefore, he should be executed based on that secretly sexy trial, is simply a dog that won’t hunt.   

And the nation knows it, and our courts are becoming a joke.  Just go read:

Salon Magazine this week:  “The Texas Justice System operates in a parallel universe ….”

CBS News:  Whitewash

USA Today this week:  read the comments….

By the way, Verna Sue Holland served on the Texas Court of Criminal Appeals as a justice during the years 1997 - 2001 and she worked dailiy with EIGHT of the current nine justices on the CCA. 

 

August 19th, 2009

Crime News: Scientific Study Reveals that DNA Evidence Can Be Faked

Israel has just set the world to spinning — again.  This time, it’s due to a new study released by scientists in Tel Aviv, where they confirm that DNA evidence can be fabricated.  Messed with.  Altered.  

Just what exactly can be done here in faking DNA?

How serious and wide-spread the repercussions are to this news is still being considered.  You see, these scientists didn’t just write some high-flautin’ research paper here.  They did actual, physical demonstrations where they did two things:

  1. They created brand new samples of both blood and saliva that had the same DNA as Person B, while they got their original blood and spit samples from Person A.  
  2. They showed how they could look up someone’s DNA profile in a database, and using that info they could then (presto-chango!) create a DNA sample of that exact same DNA … all the while never having any real, human tissue from the person whose DNA profile they had read on the screen.

What does this mean to criminal evidence in our judicial system?

There’s already some talk about not to worry — how many criminals have scientific knowledge or means to do this sort of thing?  From a criminal defense perspective, that’s missing the mark. 

What the real concern here is the misuse of this new info by those with the means and the know-how:  the lab rats working for an overzealous prosecutor who think that they’re somehow doing the right thing by just cooking up a little DNA to make a weak case stronger.

And if you don’t think that state attorneys have fabricated evidence, then you need to educate yourself on the realities of life today in this country.

July 27th, 2009

Crime News: Texas Police Get More Power to Control You

Effective this September 1st, about six weeks from now, two laws are going into effect that could have a big impact on your freedom. They give lots of power to Texas law enforcement in their dealings with the public — and if you’ve been following this blog and the antics of Texas cops these days, these new tidbits of legislation should really give you pause.

First one: The Cops Can Arrest You if You Don’t Evacuate Your Home on Their Order – The Lemming Law

That’s right. Starting 09/01/09, cops are allowed to use “reasonable force” on anyone in this state that doesn’t meekly abide by an evacuation order — you know, those orders to leave town because a fire is coming, or a tornado, or a hurricane. Remember all those stalled highways in Houston with everyone in a panic trying to escape a disaster that never happened? Well, now the cops can add to this ARRESTING anyone who doesn’t jump on the bandwagon …. (more…)

July 20th, 2009

Cop Watch: Local Cops Crazy-Taser on Video, Suspensions Follow in One Instance

This blog continues to collect stories from around the state involving law enforcement’s inappropriate use of stun guns, or “Tasers.” Today, two more stories unfold – both captured on video.

1. Setting in Back of the Car, Get Tasered in Dallas – “Take It!! Take It!!!”

Dallas cops were chasing a Honda through the West End back in March. There were three men inside the Honda, and they were thought to have beat up another man in the downtown area earlier that night. (more…)