Deliberations

Doggie Witness Prep (Coming To A Courtroom Near You?)

Recently, a loveable dog named Rose (Rosie to her friends) sat next to a child witness in court while she gave testimony about the brutal rape and impregnation she endured at the hands of her father.  Yes, a dog sat in the witness stand.  Rosie is a service dog that can sense anxiety and was provided to the young witness to aid her in the process of testifying.  At one point, the help was very evident when Rosie “nosed” the child during a particularly difficult bout of answers.

While this is the first instance of “comfort dog” use during testimony in New York State, (as this article outlines) the practice has actually been happening across the country with child witnesses for some time (Arizona, Hawaii, Idaho, Indiana, etc.).  In this case, Rosie and the witness spent five weeks bonding (and prepping) prior to the trial.  The goal of the training was to help the victim reduce her anxiety about facing her father and being questioned on such painful memories in front of a courtroom full of strangers.

Not surprisingly, the defense attorney was up in arms about the dog’s presence (and is appealing).  It is certainly a valid point to suggest that the presence of a dog could be unduly prejudicial.  Would dog lovers view her more favorably?  Dog haters more unfavorably? Is it possible that a witness could lie more easily with a comfort dog present?  How would the dog impact opposing counsel’s cross examination?

These are valid questions, but the opposing response is more persuasive.

In State v. Cliff, 116 Idaho 921, 782 P. 2d 44 (1989) an eight year old victim of sexual assault was allowed to carry her doll to the stand because the court ruled the calming effect would aid in more accurate testimony.  A similar ruling occurred in Washington [State v. Smith 119 P.3d 411 (2005)] when a teddy bear was allowed to venture into the witness box.  In those cases, the defense unsuccessfully argued that the presence of a psychological security blanket would impede cross examination of the children.

Anyone worth their salt at witness prep will tell you that anxiety is one of the top barriers to effective testimony.  Much of what litigation consultants do is help in reducing witness anxiety so the truth can be more effectively presented on the stand.  Why would the reduction of anxiety in a child be a bad thing?  Further, service dogs for people with physical/mental handicaps have long been allowed in courtrooms.  Has the presence of these dogs created unjust verdicts?

Most importantly, the “comfort dog” accommodation has primarily been utilized with children.  A child witness has a special status with the court, which can be seen in states that allow closed circuit or videotaped testimony for child victims.  As this UST Law Review notes:

“…our Supreme Court  promulgated the Rule on Examination of A Child Witness  which acknowledges the special concerns of child witnesses that need to be addressed while testifying before criminal, civil, legislative, or administrative proceeding…  the main objectives of the said Rule are to ‘create and maintain an environment that will allow children to  give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of the truth.’”

Obviously, the rules of the game change when a minor is giving testimony.  Proper voir dire should spot those jurors who would not be able to set aside the influence of having a dog (or a doll, or a teddy bear) sitting with a child on the stand.  While there is some danger of prejudicial effects, the value of truthful testimony from a calm mind (and reduced emotional damage to the child) far outweighs the potential risk.

Those interested in utilizing comfort dogs in court can check out a sample brief here.

Blogger: Matt McCusker

 

A Juror Reminds Us That The System Works

Last week, Ed Fletcher of the Sacramento Bee wrote a truly insightful piece about his jury service on a criminal trial. Not surprisingly, the story got little attention from media outlets around the country.  (Apparently, only incite-ful jury pieces need apply.)  The title of the column was “I voted to send another brother to prison.”

Mr. Fletcher is a black man (as was the defendant).  Mr. Fletcher is a journalist.  Mr. Fletcher was leaning towards a not guilty verdict at the trial’s opening.  Most importantly, Mr. Fletcher was the foreperson.

To some prosecutors (and armchair lawyers), this would be a situation that demanded an immediate plea deal.  However, that decision would have been based on an opinion of Mr. Fletcher that was rooted in stereotype and personal bias.  Worse, it would assume that the prosecution’s presentation would be so inept and disjointed, that it would be unable to overcome any juror predilections.

Instead, the State chose to present a compelling case and let the jurors decide.  As Mr. Fletcher noted:

“The gunshot residue was big, but no piece of evidence offered the clear cut satisfaction supplied by ‘CSI,’ ‘Bones,’ ‘The Closer,’ or ‘Criminal Minds.’ In our real world case, witnesses' views were obscured by darkness, the handgun had no incriminating finger prints and the (video) footage was crap.”

He continued…

“When I entered the deliberation room, my gut told me that we were headed for a hung jury. But as we kept reviewing evidence, re-reading the jury instructions on the law and talking about our positions, more of the jurors began to reach the same conclusion: Boyce fired the gun.”

Despite the harrowing cries of incompetence from the public and blogosphere, this is the typical process that justice follows in our system.  As this National Center for State Courts research indicates, hung juries are rare.  They are the exception, not the rule.  

After the trial, Mr. Fletcher did research on the newly convicted defendant.  He discovered that the man crying like a baby in court was no angel.  This put Ed Fletcher’s mind at ease:

“Today, I feel much better about our collective decision. Freed from court instructions not to do any research, I now know that Boyce's record stretches back to 1999 and includes a murder charge that was dropped in 2003, two separate plea deals on spousal abuse and a 2005 plea deal on an assault with a deadly weapon charge.”

I would argue that this is the perfect example of our system at its best.  Mr. Fletcher’s eyes presumed the defendant’s innocence from the start.  His conviction was based on the prosecution’s presentation of evidence of the crime, not an opinion of Mr. Fletcher that was rooted in stereotype and personal bias.  Sadly, it is the exception, not the rule that most of us remember.

Blogger: Matt McCusker

 

Legal Codes, Moral Codes & Nuclear Codes: Casey Anthony's Radioactive Fallout

(Blogger’s Note: I am reticent to write a blog about the same subject two weeks in a row.  However, an event like the Casey Anthony acquittal is an extraordinary occurrence.  It has garnered a sustained media frenzy that can only be likened to lowering an elephant into a piranha tank.  Moreover, rarely have we seen an episode that seemingly shakes the American public’s faith in the jury system.  As a result, I am centering on Ms. Anthony’s case again in this blog.  Next week: YouTube’s most popular furry animal video.)

Watching cable news, the closest comparison to this trial (by consensus) is the acquittal of O.J. Simpson.  However, imagine explaining this analogy to a man who had been trapped on a desert island for the last 10 years (let’s call him Mr. Robinson).  Mr. Robinson clearly remembers the O.J. trial.  It was the public downfall of an American hero.  A Hall of Fame football star who was building an acting career was accused of a gruesome double-murder in the middle of one of Los Angeles’s wealthiest neighborhoods.  Complete with an on-air Ford Bronco chase and an all-star legal team, this trial (and acquittal) was hard for anyone to forget.

“Tell me about Casey Anthony!” Mr. Robinson asks you with great anticipation.  “She must be a celebrity who did something really bad to merit ‘O.J. level’ attention.”  Then (almost embarrassedly so), you must explain to Mr. Robinson that Casey Anthony was simply an unemployed woman living part-time with her parents who was accused of killing her young child in a middle-class Orlando suburb and not reporting it for a month.  She was not famous and in the terrible annals of child murders, this was not a remarkable cause of death. “Oh.” Mr. Robinson replies quizzically. You add enthusiastically, “There were photos of her dancing in a night club!” Mr. Robinson thinks for a moment and then adds, “Times have certainly changed since I have been away.”  You have no retort.

On the afternoon of July 5, 2011 a metaphorical nuclear bomb exploded in the State of Florida.  Hyperbole, you say?  Probably.  However, it’s difficult to describe the massive reaction to such an unexpected verdict in the Anthony case.  The vitriolic fallout from the public that has arisen from this verdict has been something that caused massive damage to the public’s faith in the justice system and will likely linger for years.

In fact, it could be argued that the greatest victim of the Casey Anthony trial (obviously second to Caylee Anthony) has been the reputation of the American jury system.  Public outrage (fueled by a litany of former-prosecutor TV talking heads) has declared jurors too stupid to be trusted with important decisions.  Debates have raged on the need for more judiciary discretion or “professional jurors.”  If mental deficiency was not the cause, many media experts have suggested that the dreaded “CSI Effect” blinded the jurors (see here for my blog obliterating the CSI Effect).  Without doubt, the sales of pitchforks and torches have skyrocketed this July.

It is here that we come to a crossroads between our legal code and one’s moral code.  The legal code is a set of rules that we live by.  The legal code says that the prosecution must prove its case beyond a reasonable doubt, and Casey Anthony has no requirement to even put up a defense.  One’s moral code says that any mother who doesn’t report a missing child is lacking and likely guilty of wrongdoing.  One’s moral code may wish to punish aberrant behavior (like nightclub dancing) or perpetual lying and assume that these are symptoms of murder.

History has shown us the hazards of blending one’s morality with a justice system. Examples include:  feudalism (land owner morality), monarchy (the king's morality), the inquisition (the church’s morality), fascism (the dictator's morality) and McCarthyism (the witch hunter’s or lynch mob's morality).  

Our system is not perfect, but we tie a blindfold around Justice’s eyes for a reason.  It helps us to find a result determined by law, not morality.  In fact, a rising number of countries are actually turning to the jury system in criminal matters because of rampant judicial corruption.  Hopefully, one murder trial in Florida will not be enough for others to rethink a system that the rest of the world is learning from.

Blogger: Matt McCusker

 

The Real Danger from Casey Anthony's Trial: Scary Scientific Precedents

A cause of death that cannot be determined by the State’s medical examiner, but can be asserted on the stand by an anthropologist who has never done an autopsy.  The morphing of a projected child’s photo into a picture of her skull.  The description of a colorless decompositional  fluid (which is typically black).  Air samples that contain "the smell of death."  A phantom image of heart sticker that “disappeared” before the examiner could return to photograph it.

These are some of the worst examples of “evidence” that the State has used to make its case against Casey Anthony.  Most of these forensic techniques have never been allowed in any trial in the U.S.  Prior courts deemed them inadmissible because questionable scientific analyses should not be presented to laymen jurors (especially when a death penalty sentence is on the line).  The average juror does not have the expertise to differentiate between “good science” and “junk science”, so the court must help them by excluding dubious evidence.

For example, the “lie detector” or polygraph machine has been around for over 70 years.  Despite being regularly featured in crime shows and suspense movies, it is still generally inadmissible in our justice system.  This is because the machine is too unreliable and jurors will make more of polygraph results than can be scientifically substantiated.

 Chief Judge Belvin Perry is a very experienced legal mind.  He made his name as a prosecutor and actually brought the first woman to death row in Florida in nearly 150 years ( Judy Buenoano).  In fact, he attended the execution, so Judge Perry knows what the stakes are in capital murder cases.  This is why I have been so surprised by some of his rulings.

Casey Anthony very likely had something to do with her child's death.  However, I believe this case may well be overturned on appeal based on the reckless use of overreaching evidence.

Despite this, the alternative possibility is even more disturbing.  Once a technique has been admitted as evidence (especially in a case as high profile as Casey Anthony’s trial), it has a much greater chance of being allowed in other trials.  If this happens, the ramifications of this trial will span far beyond the salacious intrigue that has captured the nation.

Blogger: Matt McCusker

 

What THE CSI INFECTION Teaches Us About ASS-U-ME(ing) Juror Biases

 We’ve all heard about the CSI Effect, but what about the CSI Infection?  A recent paper out of Loyola University explores how the widespread fear of a very debatable CSI Effect in America’s courtrooms has set off a series of chain reactions that Ms. Lawson has dubbed a CSI Infection.  If you wander around your office ready to make cheesy puns before removing your sunglasses or you have The Who’s “Won’t Get Fooled Again” set as your ringtone; then you may not want to click this link.  It is a review of empirical studies on the CSI Effect that generally suggest it does not exist (or at least it cannot be demonstrated).  However, if you need to cling to your guns and DNA testing, only read the anecdotal reports/media stories in the review and keep your rose-colored David Caruso Ray Bans on.

(Blogger’s Note: I have facilitated a focus group on a project exploring the “CSI Effect Phenomenon” and remain thoroughly unconvinced of its existence.)

As Felix Unger says, when you ASSUME, you make an ASS out of U and ME.  Oftentimes, attorneys will let their assumptions about a large group of people (i.e. the jury pool) dominate their expectations of an individual’s behavior (i.e. the juror).  This is faulty logic, as it tries to make comparisons between apples and rhinoceroses. (I believe oranges are too close to apples and actually would make a better comparison). 

The CSI Infection is rooted in a mass assumption (without much support) by many in the legal community that most jurors are too dumb and/or emotional to truly realize that a crime drama is not real life.  It has left many attorneys believing that TV has indeed rotted juors brains and made them too “soft-in-the-head” to effectively determine levels of proof or hear a case fairly.  Honestly, is this likely?

Or, is the following scenario more likely?

1.       Prosecutors choose which cases to take on.  So, the attorneys are already weeding out many cases that have the weakest evidence (physical or otherwise).

2.      The accused know if they did the crime and get to see the evidence against them.  So, when the evidence is strong, criminals will often take a plea arrangement to avoid a harsh judge sentencing.

3.      This leaves a collection of trials under the following circumstances:

a.      The person didn’t do the crime (suggesting there should not be much strong physical evidence);

b.      The person did the crime but sees weak evidence (suggesting they have a shot at an acquittal or dismissal).

c.       The person did the crime and sees strong evidence, but decides to roll the dice anyway (explaining our high conviction rate).

This same rationale can be applied to many civil cases and settlements.  Replace the word “prosecutor” with “plaintiff’s attorney” and “plea arrangement” with “settlement.”

While it is easy to blame the jurors, sometimes a weak case is just a weak case.  Sometimes an attorney’s presentation of the evidence is poor and the jurors just “don’t get it.”  Sometimes a jury is not very bright and gets it wrong.  However, rarely (if ever) does the popularity of a crime-based television show create a substantial influence on a verdict.  Unless, of course, the trial actually involves the TV show, actors or network.  Then you might say it would be a case of the CBS Effect (cue The Who, put on sunglasses, cut to show opening credits).

(Blogger’s Note: I apologize for that last line.  I’m not as good at cheesy puns as one might ass-u-me.)

Blogger: Matt McCusker 

Taking On False Confessions

False confessions.  Two words that capsulize just how tough a criminal defense lawyer's task can be.

No wonder they talk about it so much.  In the last few days alone, a public defender and Simple Justice have traded thoughts on whether videotaping interrogations prevents false confessions or merely records them, and Grits for Breakfast points to a defendant who falsely confessed to murder after long questioning in which he was threatened with the death penalty if he didn't confess. 

There's a new book that brings evidence and history to these conversations, and to the briefs criminal defense lawyers must file when clients confess under pressure.  It's Police Interrogation And American Justice, by University of San Francisco law professor Richard Leo, published by Harvard University Press.

"A systematic feature of American criminal justice"

Here is what lawyers, judges, and the public need to know, grounded in study after study.  False confessions not only happen, but they happen commonly:

The problem of false confession is not limited to a small number of cases.  These studies reveal that false confessions are therefore not an anomaly but a systematic feature of American criminal justice, despite procedural safeguards such as Miranda rights and a constitutional prohibition against legally coercive interrogation techniques.  . . . Unless police change their procedures for selecting suspects and their interrogation practices, false confessions will continue to occur regularly.

How can this be true in 2008?  Leo explains that the problem isn't that we haven't progressed from the days of bright lights and the third degree.  To the contrary, sadly, the problem is that we have progressed.  Leo narrates the development of increasingly sophisticated techniques of police interrogation, techniques that manage to break down a defendant's psychological defenses and build a detailed and compelling story for the jury at the same time. 

"A dangerous piece of evidence"

And it matters, of course.  You didn't need studies to know that, but Leo gathers the studies all the same.  False confessions mean mistaken convictions:

Taken together these studies demonstrate that a false confession is a dangerous piece of evidence to put before a judge or jury because it profoundly biases their evaluations of the case in favor of conviction -- so much so that they will allow it to outweigh even strong evidence of a suspect's innocence.  . . . Jurors simply do not appropriately discount false-confession evidence, even when the defendant's confession was elicted by coercive methods and the other case evidence strongly supports his innocence.  False-confession  evidence is thus highly, if not inherently, prejudicial to the fate of any innocent defendant in the American criminal justice system.

There are briefs to be written out of this book.  If enough of them win, the reforms Leo proposes in his final chapter might begin to take hold.

_____________________

Note:  As often happens, forensic psychologist Karen Franklin's excellent "In The News" blog was well ahead of me in discussing Leo's book.

Wisconsin, Where Juries Matter

I often find myself writing about cases where jury trials were messed up, from badly to horribly, and appellate courts forgave -- or didn't see -- the problem. 

"This case must be retried on facts"

There's been a run of exceptions lately, though, right in Deliberations's backyard.  In the last several weeks, different Wisconsin appellate panels have looked at trials where criminal juries saw or heard something they shouldn't have.  In each case, the courts reversed the convictions with striking firmness and clarity.  Examples:

State v. Stanley on December 12, a drunk driving case where the deliberating jury asked whether it was still "operating" if the defendant got into a car when the motor was already running.  Quoting a prior case, State v. Proegler, the trial court told them that "operation" meant “either when a defendant starts the motor and/or leaves it running.”  The court of appeals said that facts mattered, and that Mr. Proegler in the prior case had admittedly driven to the place where police found him.  Stanley's case was different:  "We do not read the statute or the Proegler case to include as operators passengers who slide into the driver’s seat of a running vehicle and fall asleep."

State v. Champlain on December 5, where the defendant had to sit through trial -- and write notes to his lawyer -- wearing a visible "armband taser device."  The court held that it was not only ineffective assistance for his lawyer not to object, but that the trial court should have determined whether the armband was necessary even without an objection. 

State v. Cooper on December 4, where the state used a "show-up" identification that should have been suppressed under the Wisconsin Supreme Court's 2005 State v. Dubose case.  Dubose was decided after Cooper's trial judge had ruled that the identification would be admitted, but before Cooper's trial.  The court of appeals held that Cooper's counsel was ineffective for not asking for reconsideration of that ruling after Dubose came down, and that anyway the trial court should have granted postconviction motions based on Dubose. 

State v. Burton on October 31, where a police "gang expert" testified for the state.  The court of appeals was mad: 

The expert's testimony insinuated, without any basis, that Burton was a part of the gang culture, if not actually a member of a gang. It recast the case as being about gang retaliation or gang culture, anathema to the reasonable citizen, when there was no evidence that the shootings were gang crimes. Not only that, the testimony also purported to explain away the inconsistencies of witnesses simply because gangs infested the neighborhood in which the witnesses lived. If this had any probative value, which we doubt, it was far outweighed by prejudice. Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. This case must be retried based on facts, rather than insinuation or stereotyping.

Another court in another state -- or here, on another day -- might have steered these cases toward a finding of harmless error, waiver, or some other way to salvage the trial, citing the burden on society when trials have to be done twice.  There's a place for those arguments sometimes, but they're overused.  I can personally report that life is going on as usual in Wisconsin even though these trials will be repeated.  And a different burden on society -- the one we bear when nobody cares what juries see and hear -- is lifted.

(Photo of a Wisconsin field after this week's snows by Cathy Stanley-Ericksen at http://www.flickr.com/photos/madcitycat/2110974734/; license details there.)