Case study 6: Confront forensic analyst witnesses

Transcription

1 Case study 6: Confront forensic analyst witnesses Williams v. Illinois- the latest in a string of cases addressing whether the Constitution s confrontation clause which gives the accused in a criminal case the right to be confronted with the witnesses against him applies to forensic analysts who produce reports for law enforcement. In other words, should an analyst responsible for, say, a fingerprint report have to show up at trial to face questions about the report? A logical application of the law produces an easy answer: Yes. The court has defined a witness against a defendant as a person who provides information to law enforcement to aid a criminal investigation. That is exactly what forensic analysts do. Subjecting forensic analysts to cross-examination is also good policy. According to a recent National Academy of Sciences study, forensic science is not nearly as reliable as it is perceived to be. DNA specimens, for instance, are sometimes contaminated; fingerprint, ballistics and even run-of-the-mill drug and alcohol analyses depend on human interpretation and thus are subject to error. Worse, investigations over the past decade have revealed outright incompetence and fraud in many crime labs. So it makes sense to subject the authors of lab reports to cross-examination a procedure the court has called the greatest legal engine ever invented for the discovery of truth. Despite all this, the Supreme Court has been sharply divided on the issue. In similar cases in 2009 and earlier this year, in which I represented the defendants, Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. accepted claims by state governments that, simply put, confrontation in this context costs too much. It is far more efficient, these justices contend, to let analysts simply mail their reports to court. Having to appear at trials pulls them away from their labs, and only occasionally proves more revealing than their written testimony. Hence, these justices maintain, scarce state resources are better committed elsewhere. Given that several states have long required forensic analysts to come to court, one might think that this financial argument would not have gained much traction. Justice Antonin Scalia, in fact, called the argument a bogeyman. But the four dissenting justices not only accepted it but deemed it powerful enough to trump the commands of constitutional text and precedent. The same battle lines are being drawn again in the case to be heard next week (for which I have signed a friend-of-the-court brief in support of the defendant). In Williams v. Illinois, the defendant contends that he should have been given the right to confront an analyst in the lab that generated a DNA profile from the crime scene. Yet the State of Illinois argues that the extra cost of bringing that witness into court was unnecessary, because the defendant had an opportunity to question a different analyst who compared that profile to the defendant s and concluded that it was a match. A friend-of-the-court brief by the Manhattan district attorney s office pushes the state s argument one step further, warning that a ruling in the defendant s favor would prove so costly that it would force prosecutors to forgo forensic DNA analysis in future cases. Consequently, the brief continues,

2 defendants in rape and murder cases might well be prosecuted solely on the basis of eyewitness testimony, which is notoriously unreliable and could lead to convictions of many innocent individuals. This is an outrageous assertion. Nothing in the outcome of the Williams case, which deals only with the admissibility of evidence, will preclude prosecutors from using DNA testing to determine whether they have the right guy. Presumably, prosecutors concerned about whether they imprison (or, in some states, execute) innocent people will continue to do such testing whenever possible, no matter how much it will cost to enter the results as evidence. But the assertion in the Manhattan district attorney s brief reflects in a particularly dramatic way some prosecutors belief that they can bully the court into refusing to enforce a constitutional guarantee simply by arguing that such enforcement would be an administrative and financial burden. There s nothing new here. In the 1963 case of Gideon v. Wainwright, Alabama and several other states filed a brief urging the court to refrain from interpreting the Bill of Right s guarantee of the assistance of counsel to require states to provide lawyers to poor defendants accused of felonies. The brief said such a rule would impose on states an unbearably onerous financial burden to pay the fees of attorneys. The court, of course, was not moved. States have adapted. And the Gideon case has become a cornerstone of American jurisprudence. It s almost impossible now to imagine how a trial could be considered fair without that basic procedural guarantee. The court should follow this lesson in Williams and refuse to be cowed by prosecutorial bogeymen. It unquestionably costs money to deliver the fundamental demands of justice. But the price is not nearly so high as the states usually claim. And the price of failing to enforce basic procedural rights is, in the long run, much higher. -Opinion piece by Jeffrey L. Fisher is an associate professor of law at Stanford. Case Study 7: Dog search unreasonable

3 n a 6-3 decision issued today in the case of Rodriguez v. United States, the U.S. Supreme Court held that Nebraska police violated the Constitution by extending an otherwise lawful traffic stop in order to let a drug-sniffing dog investigate the outside of the vehicle. According to the majority opinion of Justice Ruth Bader Ginsburg, which was joined by Chief Justice John Roberts and Justices Antonin Scalia, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution s shield against unreasonable seizures. While an officer...may conduct certain unrelated checks during an otherwise lawful traffic stop, Ginsburg held, a dog sniff, unlike the routine measures just mentioned, is not an ordinary incident of a traffic stop. At issue was a 2012 traffic stop conducted by a Nebraska police officer who happened to have his K-9 dog in the cruiser with him. When the stopped driver, Dennys Rodriguez, refused to consent to letting the drug dog walk around the outside of his vehicle, the Nebraska officer called for back-up, thereby prolonging the stop by an additional eight minutes. According to the Court s ruling today, those extra minutes violated Rodriguez s constitutional rights. During the January 2015 oral argument in the case, Justice Sonia Sotomayor previewed the Court s skepticism towards the police officer s approach. We can't keep bending the Constitution to the resources of law enforcement, Sotomayor declared. Particularly when this stop is not incidental to the purpose of the stop. It's purely to help the police get more criminals, yes. But then the Bill of Rights becomes a useless piece of paper. Case study 8: Inmates rights

4 The family of an Ohio inmate whose Thursday execution took nearly 25 minutes and was marked with ten minutes of gasping and struggling will file a lawsuit over the circumstances of his death. Dennis McGuire was put to death using a combination of intravenous drugs that had never before been used in a lethal injection execution. John Paul Rion, the attorney representing McGuire s children in their lawsuit, said at a press conference that the execution violated McGuire s constitutional protection against cruel and unusual punishment. I can t think of any other way to describe it than torture, daughter Amber McGuire said in a statement. While fighting last week to block the execution, McGuire s lawyers argued that the new drug combination could cause agony and terror before killing him. Ohio prison officials opted to use midazolam, a sedative, and the painkiller hydromorphone because manufacturers of other drugs used in executions will no longer export them to be used for capital punishment. The lawsuit could have implications in other states that are also struggling to find new ways to execute convicts thanks to the nationwide drug shortage. Thirty two states authorize the use of lethal injection, and there are inmates on death row in Connecticut, Maryland, and New Mexico that are still facing lethal injection executions. Ohio has another execution scheduled for March, but the circumstances of McGuire s death offer a strong argument for that inmate s defense team. I think they re going to look at these challenges, especially those involving new sources and new drugs, and ask the state to prove their case, Richard Dieter, Executive Director of the anti-death penalty Death Penalty Information Center told msnbc. The fact that doctors correctly predicted gasping and air hunger could make it easier for judges to prevent more untested methods from being used. The burden is going to be shifting a bit in these hearings. Every lethal injection gets challenged in the courts, but now there s going to be more scrutiny of the state s methods, Dieter said. Dennis McGuire was sentenced to death for the 1989 rape and murder of Joy Stewart. The state s Assistant Attorney General Thomas Madden argued in response to McGuire s lawyers that you re not entitled to a pain-free execution. A federal judge agreed, but ordered the state to keep the syringes, vials, and packaging used in the execution. Speaking after McGuire s death, his attorney Allen Bohnert said, The people of the state of Ohio should be appalled at what was done here today. Case study 9: Laptop password

5 San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court in Colorado today to block the government's attempt to force a woman to enter a password into an encrypted laptop, arguing in an amicus brief that it would violate her Constitutional privilege against self-incrimination. A defendant in this case, Ramona Fricosu, is accused of fraudulent real estate transactions. During the investigation, the government seized an encrypted laptop from the home she shares with her family, and then asked the court to compel Fricosu to type the password into the computer or turn over a decrypted version of her data. But EFF told the court today that the demand is contrary to the Constitution, forcing Fricosu to become a witness against herself. "Decrypting the data on the laptop can be, in and of itself, a testimonial act -- revealing control over a computer and the files on it," said EFF Senior Staff Attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Bill of Rights was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court." The government has offered Fricosu some limited immunity in this case, but has not given adequate guarantees that it won't use the information on the computer against her. "Our computers now hold years of with family and friends, Internet browsing histories, financial and medical information, and the ability to access our online services like Facebook. People are right to use passwords and encryption to safeguard this data, and they deserve the law's full protection against the use of it against them," said EFF Staff Attorney Hanni Fakhoury. "This could be a very important case in applying Americans rights in the digital age."