On January 21, 2012, The Economist published an article about systemic bias in the criminal justice system. Prosecutors routinely present expert testimony from “forensic scientists” or “criminalists.” One of the many problems with this evidence is that the criminalists are usually not independent. They work in government crime labs, and they understand the prosecutors’ theories of the cases before evaluating the evidence. Even assuming that the criminalists want to be fair and independent, it is inevitable that, under those circumstances, their opinions will be unfairly influenced to the benefit of the prosecuting authorities.
On January 27, 2012, the United States Court of Appeals for the Third Circuit granted habeas petitioner Han Tak Lee the right to discovery so that he can challenge his Pennsylvania arson-murder conviction in federal court. This is an extremely important development for Mr. Lee and other inmates that have been wrongly convicted based upon bad science. The Court recognized that it would be a violation of due process for an inmate to be incarcerated based upon fundamentally unreliable expert testimony.
In December of 2010, I tried a complex arson-murder habeas corpus case in a Connecticut court that raised the same federal due process claim. With the extraordinary assistance of a fire scientist from Massachusetts, I presented evidence that completely disproved the prosecuting authority’s case against my client. The evidence was based upon actual fire tests that proved that there was an alternative innocent explanation for the evidence that the prosecuting authority’s expert claimed could only have been caused by someone pouring a liquid accelerant on the floor. The so-called “science” that had been used to convict my client was proven to be wholly and fundamentally unreliable. Unfortunately, the habeas judge did not recognize the constitutional violation. The case is now on appeal. Hopefully, the Han Tak Lee decision is a harbinger of good news for my client.
The New York Times: “Sending of Sexual Images by Minors Isn’t as Prevalent as Expected, Study Finds”
The New York Times is reporting that a new study, published today in the journal Pediatrics, shows that “only” 1% of children are violating child pornography laws by sexting. Apparently, it was previously thought that about 20% of children were violating child pornography laws by sexting. I have two immediate thoughts on this issue.
First, there is no bright line separating sexually explicit images of children that are pornographic from sexually explicit images of children that are not pornographic. Whether any particular sexually explicit image of a child is pornographic is a factual question. Prosecutors have enormous discretion to decide whether to pursue such a case, and juries have enormous discretion to decide whether a particular sexually explicit image of a child is pornographic. Of course, there is always the opportunity to obtain review by judges on the grounds that there is legally insufficient evidence, but that cannot occur until well after arrest, and the standard of review is extremely unfavorable to defendants. The impression given by the article—that only 1% of children are subjecting themselves to being arrested for violating laws prohibiting child pornography—is false and misleading.
Second, the fact that at least 1% of children are subjecting themselves to being arrested and convicted for violating laws prohibiting child pornography is troubling. If a 16 year old girl texts a sexually explicit image of herself to her 16 year old boyfriend, she has at least arguably violated child pornography laws. There are an enormous number of children that could be prosecuted for violating child pornography laws because of seemingly innocent sexting. Even if only 1% of children are subjecting themselves to being arrested for violating laws prohibiting child pornography, that is still a huge number of children that could have their lives destroyed.
The Texas Tribune and The New York Times are reporting about a Texas case involving a young woman, Megan Winfrey, that was convicted of murder and sentenced to life imprisonment based upon the hearsay “testimony” of a dog. A dog handler allowed the dog to sniff the clothes of the murder victim, and then allowed the dog to sniff Ms. Winfrey. Apparently, the dog “alerted” when it sniffed Ms. Winfrey. The dog’s “alert” is apparently the only evidence that supports Ms. Winfrey’s conviction. Dog scent sniffing evidence is supposedly scientific evidence, but, in reality, there is nothing scientific about it. It is junk science. Unfortunately, dog sniff evidence is also used in Connecticut. I am working on such a case now.
Doug Wirth and George Harasz, a married couple from Glastonbury, have been arrested and charged with committing child sexual abuse against children that they adopted from the Connecticut Department of Children and Families. The first reaction that most lay people will have when they hear about the charges will be to assume that the allegations are true. This is unfortunate because, based upon the facts reported, this appears to be a situation ripe for false allegations of child sexual abuse. And, based upon my experience handling similar cases, I expect that the investigation conducted by the state was incomplete and biased. The system is designed to convict people accused of child sexual abuse; it does not exist to protect people that have been falsely accused. Mr. Wirth and Mr. Harasz better be prepared to fight for their lives.
Professor Jeffrey L. Fisher has an excellent Op-Ed article in The New York Times today, titled “The Bill of Rights Doesn’t Come Cheap.” Professor Fisher explains why the text of the Sixth Amendment to the United States Constitution, the relevant legal precedents, and public policy support the right of criminal defendants to be able to actually confront forensic analysts in court, as opposed to the reports of those analysts being admitted into evidence without defendants being given an opportunity to cross-examine the analysts. The article is related to the case of Williams v. Illinois, which will be argued in the United States Supreme Court on Tuesday, December 6, 2011.
On June 6, 2011, in Martinez v. Ryan, No. 10-1001, the United States Supreme Court granted the petitioner’s petition for a writ of certiorari to review the decision of the United States Court of Appeals for the Ninth Circuit. The petitioner, Luis Mariano Martinez, is an inmate in the custody of the Arizona Department of Corrections. The respondent, Charles L. Ryan, is the Director of the Arizona Department of Corrections. This is the question presented:
Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim.
This is an important case with enormous potential implications in Connecticut and throughout the rest of the nation. In Connecticut, under the Leecan Rule, ineffective assistance of trial counsel claims must be raised in a postconviction petition for a writ of habeas corpus; they cannot be raised on direct appeal from a criminal judgment. State v. Leecan, 198 Conn. 517 (1986). Under Pennsylvania v. Finley, 481 U.S. 551 (1987), there is no federal constitutional right to the appointment of counsel in state habeas corpus proceedings, and, thus, there is no federal constitutional right to the effective assistance of habeas counsel in state court habeas corpus proceedings. Therefore, in Connecticut and other states with rules similar to the Leecan rule, there is no federal constitutional right to the effective assistance of counsel for the purpose of presenting federal ineffective assistance of trial counsel claims.
A ruling in favor of the petitioner in Martinez v. Ryan, No. 10-1001, would necessarily overrule Pennsylvania v. Finley to the extent to which state criminal defendants are prohibited from raising federal ineffective assistance of trial counsel claims on direct appeal from their criminal convictions. It would also seem to open the door for the recognition of a federal constitutional right to the appointment of habeas counsel to pursue other federal constitutional claims that could not have been presented at trial or on direct appeal, which would radically change postconviction criminal practice.
The appellate brief of the petitioner was filed on August 4, 2011. The appellate brief of the respondent is due on September 6, 2011. The case is set for oral argument on Tuesday, October 4, 2011.
Yesterday, The New York Times reported that a prosecutor in New York State used a dog to help convict a man accused of sexually abusing his daughter. The dog was used to comfort the complainant during her testimony. For example, “[a]t least once when the teenager hesitated . . . the dog rose and seemed to push the girl gently with her nose.” The defendant was convicted and sentenced to a term of incarceration of 25 years to life. The theory behind the use of the dog is that victims of child sexual abuse need help and encouragement during their testimony. The problem with that reasoning is that it presupposes that the allegations are true, which is obviously inconsistent with the constitutional right to the presumption of innocence. The use of the dog raises many complex issues. How did the behavior of the dog influence the jury’s interpretation of the testimony of the complainant? Are some dogs better trained to buttress the testimony of complainants? What is the scope of the permissible behavior of the dog during the testimony of the complainant? This case is an excellent example of how the criminal justice system is tilted in favor of obtaining convictions, especially in child sexual abuse cases. It will be interesting to see how the claim related to the use of the dog in this case is resolved on appeal.
