The Impact Of What We Do Has on Our Children

One night last week, I had to get some money for one of my boys for a school the next morning.  When I looked in my wallet I was a dollar short of what he needed.  Instead of going to the ATM late at night I went scrounging for change. I found one of the gold color dollar coins that you get from the Post Office.

I gave my son the dollar bills and the dollar coin.  His kidding response was “Why are you giving me prison money?”  It took me a second to remember why he called it that.  I use to go to the federal prisons to visit clients more frequently than I do now,  if you changed a $5.00 bill, the machine would only give you the $1 coins.  So when I would come home that would be the kids would get when they needed money.

My youngest son shocked me when at 7 or 8 he asked about people’s rights.  My oldest asked about forensic blood analysis, when he was very young, I assume after hearing me talk about a Capital Murder case I had at the time.  Not sure he understood my explanation, but it was an interesting discussion.

The biggest impact my choice of profession has had on my sons, is the understanding that people have rights that have to be protected even if the person is not likable and that you have to question authority.  The later one has come back to haunt me a few times but it is still a good trait for them to have as they grow up.

It would be interesting to hear other people’s stories about the impact their job has had on their children.

NYT Editorial on Supreme Court Case on Warrantless Search

The New York Times

 

November 12, 2013
When the Police Enter a Home

By 

The home is “at the very core” of the Fourth Amendment’s protection against unreasonable government intrusion, as the Supreme Court has said repeatedly. It is where a person’s expectation of privacy is greatest.

The first line of defense of this privacy is the warrant requirement. If police officers want to search a home without a warrant, they are required to get a tenant’s consent. If one tenant consents and another does not, the objector’s wish prevails.

But what if the police lawfully arrest the objecting tenant and remove him from the home, may they enter then? That is the question the Supreme Court is considering on Wednesday in Fernandez v. California.

In 2009, Los Angeles police investigating what they believed to be a gang-related assault and robbery saw one of the suspects enter a nearby apartment. They knocked on the door, and a woman holding an infant answered. She had a fresh wound on her face and blood on her hand and shirt. When the police saw the suspect behind her, they asked him to step outside. He said, “You don’t have any right to come in here. I know my rights.”

The police arrested the man, Walter Fernandez, on charges of domestic violence, and he was taken to the police station. An hour later, the police returned to the home and asked the woman, Mr. Fernandez’s girlfriend, if they could enter. She consented, and the subsequent search turned up a shotgun, ammunition and a knife allegedly used in the robbery.

Mr. Fernandez received an enhanced sentence of 14 years for the gang-related assault and robbery. He appealed, arguing that the enhancement was based on evidence collected in an unlawful search of his home. The state court rejected his appeal, finding that the police’s warrantless entry was legal because he was no longer there to object. Once he was gone, the state claimed that his girlfriend’s consent rendered the search lawful.

But there is no reason to complicate existing law in such circumstances. A tenant’s right to object to a warrantless search should not depend on whether he can permanently stand guard at his front door. If the police have probable cause to make an arrest, they will almost surely have the basis for a warrant as well. Warrants can be issued in a matter of minutes, and, in the meantime, the police can secure the home if they are concerned that evidence may be destroyed.

The state contends that obtaining consent is “simpler, faster and less burdensome” than getting a warrant. But that is precisely the point. By forcing the government to get a judge’s approval before intruding into a private home, the warrant requirement ensures oversight of law enforcement and informs citizens that the search has been authorized by a neutral arbiter.

The home, as the court has said, has long enjoyed “special protection as the center of the private lives of our people.” The justices should reaffirm that principle and require police who wish to search a home to get a warrant, even if the only person standing in their way is in a holding cell.

http://www.nytimes.com/2013/11/13/opinion/when-the-police-enter-a-home.html?_r=0

The injustice of Ken Anderson’s 10-day sentence is blood boiling

Updated: 08 November 2013 10:55 PM

GEORGETOWN — A former Texas prosecutor charged over a wrongful murder conviction agreed to a 10-day jail sentence Friday, accepting the punishment in front of the innocent man he helped put in prison for nearly 25 years.

Ken Anderson also will be disbarred and must serve 500 hours of community service as part of a sweeping deal that was expected to end all criminal and civil cases against the embattled ex-district attorney.

Anderson, 61, never spoke in his return to the same Williamson County courthouse where he served as a state judge for 11 years before resigning in September.

Sitting behind Anderson in the gallery was Michael Morton, who was released from prison in 2011 after DNA evidence showed he didn’t beat his wife to death in 1986.

“It’s a good day,” said Morton, surrounded by his lawyers and family members. “I said the only thing that I wanted, as a baseline, is Ken Anderson to be off the bench and no longer practicing law — and both of those things have happened, and more.”

Anderson entered a plea of no contest to contempt of court. The charge stemmed from 1987, when Anderson, then the Williamson County district attorney, was asked by a judge whether he had anything to offer that was favorable to Morton’s defense. He said no.

But among the evidence Morton’s attorneys claim was kept from them were statements from Morton’s 3-year-old son, who witnessed the murder and said his father wasn’t responsible. There were also interviews with neighbors who said they saw another man near the Morton home before the slaying.

Anderson must report to Williamson County Jail by Dec. 2. Morton’s attorneys said that Anderson could serve as few as four days.

Anderson has previously apologized to Morton for what he called failures in the system but has said he believes there was no misconduct.

Morton’s attorneys announced afterward that there will be an audit of all cases handled by Anderson to look for other instances of misconduct. The audit will initially focus on people still serving jail time.

Morton was a regular presence at the Texas Capitol this spring and helped push through the Michael Morton Act, which helps compel prosecutors to share files with defense attorneys that can help defendants’ cases.

Texas leads the nation in prisoners set free by DNA testing — 117 in the last 25 years.

The Associated Press, Austin American-Statesman

http://www.dallasnews.com/news/local-news/20131108-ex-prosecutor-gets-10-days-in-jail-over-michael-morton-case.ece?nclick_check=1

 

NYT OP Ed on Punishing Prosecutors

The New York Times

November 8, 2013
A Prosecutor Is Punished

By 

For what may be the first time on record, a former prosecutor in Texas is going to jail for failing to turn over exculpatory evidence in a murder trial. The 10-day jail sentence for the prosecutor, Ken Anderson, is insultingly short — the victim of his misconduct, Michael Morton, spent nearly 25 years in prison. But because prosecutors are so rarely held accountable for their misconduct, the sentence is remarkable nonetheless.

In 1987, Mr. Morton was convicted of beating to death his wife, Christine, and sentenced to life in prison. He maintained his innocence, and in 2010 DNA testing confirmed that he was not the killer.

Even before a Texas court vacated Mr. Morton’s conviction, his lawyers alleged that Mr. Anderson, the prosecutor in his case, had deliberately withheld evidence that would have exonerated him. During Mr. Morton’s trial, the judge had ordered Mr. Anderson to turn over any such evidence and received only a few documents in return. In fact, Mr. Anderson possessed many documents he did not turn over, including a transcript of a phone conversation revealing that the Mortons’ 3-year-old son had described his mother’s killer as a “monster” who was not his father.

Mr. Anderson, who later became a judge, has said he did not consider the judge’s order official because it was not written down. But he was fully aware of his ethical duty to disclose important exculpatory evidence and that a failure to disclose violates due process rights under the Constitution. In April, a judicial investigation found probable cause to believe that Mr. Anderson was in criminal contempt for withholding the documents. On Friday, he pleaded no contest. In addition to receiving the jail sentence, he was disbarred and stripped of his law license.

This case may sound extreme, but prosecutorial misconduct is far too common, and the remedies for it, if any, usually come long after the harm has been done. Criminal defense lawyers have called for judges to issue a standard written order reminding prosecutors of their ethical duty and to warn them of contempt charges if they do not comply. Prosecutors should welcome this practice to reinforce professional standards and identify the wrongdoers among them.

http://www.nytimes.com/2013/11/09/opinion/a-prosecutor-is-punished.html?adxnnl=1&ref=todayspaper&adxnnlx=1384013886-3AGX0vZCAGegjQ+TfnLQHw&_r=0&pagewanted=print

Article from New Blog “Deliberations” about Jurors and Jury Selection

OVERCONSUMPTION: OUR MEDIA, OUR JURORS, AND ITS IMPACT ON OUR VERDICTS

By: Michelle-Ramos Burkhart
A recent study conducted by the Pew Research Center in 2013 found the following increases in media use over the past decade (from 2000 to 2010):
  • The average internet use by adults rose from 46% to 79%
  • The use of home broadband rose from 5% to 64%
  • The ownership of cell phone use rose from 50% to 82%
  • Social network users rose from 0% to 48%
There is no question that the media now permeates every aspect of daily life.  On average, individuals spend 30% of their waking hours using some form of media (Lamb, 2005).  It is reasonable to assume from these figures that media has also significantly affected the justice system and our legal process.
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Although across the U.S. crime rates have continuously declined, researchers are now examining the effects of media sensationalism and the everyday visual access to crime scenes via television and internet on jurors’ perceptions and opinions.  Many jury consultants would agree that there is a relationship between legal media reporting and viewing and a juror’s opinions on everything from an attorney’s demeanor to their position on the death penalty.
Not only does television and internet have the ability to alter jurors’ perceptions, so does radio, music, video games, social media, and newspapers.  The media can also impact selected jurors despite jury instructions given in the courtroom.  Take the Jodi Arias trial for instance, where post-conviction and pre-sentencing communications were discovered on a juror’s Facebook page where she wrote: “If she [Arias] does have Latina blood, it may explain a temper lol,” Juror No. 17, wrote in the comment field (Winch, 2013).
The media is a market driven institution that produces or pitches stories 24/7 for public enjoyment, entertainment, and ratings.  High profile court cases have seemingly generated some of the top ratings and it is clear the public simply can’t get enough. The manipulation is of great concern for many; take for example the Trayvon Martin case.  While pundits were focused on the defense and prosecution strategy, there were several days when the media’s sole focus was on the “celebrity” of the prosecutor who was holding regular press conferences and receiving legal “rock star” treatment. Furthermore, media publicity often creates biases, prejudices, and stereotypes to be developed within one’s potential juror pool.  According to a study by Dexter, Penrod, and Otto (1994), trial evidence can lessen the prejudice that is developed by pre-trial media but it cannot eliminate it completely.  Overall, the literature supports the argument that pretrial publicity shapes verdicts (Studebaker, 2002).
The influence of pre-trial media can easily be seen in numerous recent cases; headline news outlets often present the coverage with interesting and often inflammatory bylines that captivate public interest.  The media can significantly influence opinions about the legal issues presented and often provides misinformation about the law, evidence, or facts altogether. Viewing a court case exclusively through the media creates potentially erroneous perceptions, judgments, and ideas about our judicial system and legal process.  Those viewing today will be called tomorrow to serve with those misperceptions and biased opinions.
When is media coverage too much?  Is it time to set some guidelines that must be adhered to beyond the sole discretion of the judge in a given case?  As a legal psychologist and lawyer, I think we are ineffectively addressing the media issue, but under whose jurisdiction does the rule making lie?  It is hard to know and even harder to come to a consensus in the field.  When fashioning a remedy to protect a defendant’s right to a fair trial, a trial judge must balance the accused’s Sixth Amendment right to a fair trial with the media’s First Amendment right to freedom of the press and this presents a challenge. Courts have historically applied such remedies as venue changes, jury instructions,  and sequestration, many of which have ben found to be fairly ineffective at protecting a defendant’s right to a fair trial (Bunker, 1997).  Many believe this is a non-issue, while others feel strongly that it is destroying the fairness and impartiality of our trials in this country.  While the opinions and solutions may not be clear, one thing is for certain: the media’s appetite for legal cases is only going to grow with their ratings.  The question is how or when do we as advocates for equal and fair justice decide when enough is enough?
Perhaps consultants can add value and educate attorney clients through technology, and offer more pre-trial media meta-analyses. Perhaps researchers can conduct post-trial media assessments that examine jurors’ decision making processes, including how prior media exposure informs and influences those decisions.  Perhaps more practical research data can be conducted through post jury interviews, rather than simply relying on higher education research conducted in academic settings — this practical research might add more value to the field and offer a more realistic look at the impact of pre-trial publicity. There are no easy solutions to be sure, but work needs to be done because as technology advances, so will jurors’ exposure in all forms. We need to embrace the new paradigm and lead the legal field on being responsive to this new lens through which jurors view the judicial process.
References:
Bunker, M.D. (1997).  Justice and the Media: Reconciling Fair Trials and a Free Press.
Dexter, Penrod, and Otto (1994) The biasing impact of pretrial publicity on juror judgments. Law and Human Behavior, 1 (4) 453-469.
Lamb, G. M. (2005).  We swim in an ocean of media. Last retrieved athttp://usatoday30.usatoday.com/tech/products/2005-09-27-media-study_x.htm
Pew Internet and American Life Project.  (2011).  http://www.pewinternet.org/ (last visited Dec. 1, 2011)
Studebaker, C.A. (2002) Studying Pretrial Publicity Effects, New methods for improving ecological validity and testing external validity, Law and Human Behavior, 26, 29.
Winch, G. (2013) The problem with jurors and tweeting. Last retrieved athttp://www.hlntv.com/article/2013/09/03/jodi-arias-retrial-problem-jurors-tweeting
Author Snapshot:
Michelle Ramos-Burkhart, J.D., LL.M is the founder and president of Verdict Works, LLC, a trial consulting firm based in Long Beach, CA.  You can learn more about Verdict Works at http://www.verdictworks.com/# or contact Michelle directly at michelle@verdictworks.com.

NYT Editorial on Privacy

States Take on Privacy

By 

Tired of waiting for Congress to pass comprehensive privacy legislation, state lawmakers are taking matters into their own hands, and not a moment too soon. Legislatures across the country have enacted laws to regulate the kinds of information that companies and law enforcement agencies can collect about individuals and how it can be done.

Businesses ranging from social networking services to little-known data brokers collect all kinds of information about consumers, often without their knowledge or permission. The data includes basic details like what websites people visit, what they purchase online and in retail stores and whom they interact with. The information is most commonly used to help businesses deliver targeted ads, but it can also be amassed into detailed profiles for purchase by anybody, including potential employers.

In Washington, lobbyists from technology, marketing and related industries have effectively put the brakes on privacy protection legislation. Lawmakers have done nothing to advance a consumer privacy bill of rights that President Obama proposed in 2012, which would have allowed consumers to restrict the data collected and required businesses to give individuals access to files about them. And despite the Federal Trade Commission’s support for a “do-not track” option on Internet browsers that could prevent advertisers from monitoring consumers online, it has not been implemented.

This is why more than 10 states have passed more than two dozen state privacy laws just this year, as reported in The Times by Somini Sengupta. Texas passed a bill that would force police to get a warrant to look at emails — a similar federal bill was approved by the Senate Judiciary Committee in April but has not come to a vote in the Senate. California made it illegal to publish the nude pictures of someone online without his or her consent. Other states have restricted the use of drones for surveillance.

Industry officials complain that these state efforts are creating a patchwork of rules that will be hard for companies to satisfy, in part because it’s not easy to tailor websites to comply with state-specific rules that might even contradict one another in some cases.

Some of the laws might be hard to carry out, but if that turns out to be the case, the technology and advertising industries have only themselves to blame. By stalling legislation in Congress, they have essentially invited state lawmakers to take up the cause of consumers, who are increasingly worried about privacy. The response of businesses to this trend has been to increase lobbying in state capitols to kill or water down privacy bills.

If these industries are actually interested in uniform rules for the entire country, here is a suggestion: Stop obstructing legislation in Washington, and sit down with lawmakers and consumer advocates to come up with effective federal laws.

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Series of Articles Alleging Prosecutorial Misconduct alleged Capital Cases

Prosecutorial misconduct alleged in half of capital cases

Part 1 of 4

Noel Levy was Arizona Prosecutor of the Year in 1990 when he convinced a jury to convict Debra Milke of first-degree murder for allegedly helping to plan the murder of her 4-year-old son.

A year later, he convinced a judge to send her to death row.

It was a scandalous case: Prosecutors charged that in December 1989, Milke asked her roommate and erstwhile suitor to kill the child.

The roommate and a friend told the boy he was going to the mall to see Santa Claus. Instead, they took him to the desert in northwest Phoenix and shot him in the head.

But neither man would agree to testify against Milke, and the state’s case depended on a supposed confession Milke made to a Phoenix police detective.

Milke denied confessing.

The detective had not recorded the interview, and there were no witnesses to the confession.

When Milke’s defense attorneys tried to obtain the detective’s personnel record to show that he was an unreliable witness with what a federal court called a “history of misconduct, court orders and disciplinary action,” the state got the judge to quash the subpoena.

“I really thought the detective was a straight shooter, and I had no idea about all the stuff that allegedly came out,” Levy recently told The Arizona Republic.

But in March of this year, after Milke, now 49, had spent nearly 24 years in custody, the 9th U.S. Circuit Court of Appeals threw out her conviction and sentence because of the state’s failure to turn over the detective’s personnel record so that Milke’s defense team could challenge the questionable confession.

The 9th Circuit put the onus on the prosecution.

“(T)he Constitution requires a fair trial,” the ruling said, “and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence.”

The 9th Circuit judges ordered that Milke be retried within 90 days or be released.

The chief circuit judge referred the case to the U.S. Attorney General’s Office to investigate civil-rights infringements. Under the 9th Circuit order, prosecutors must allow the detective’s personnel record into evidence if they use the contested confession.

Prosecutors are responsible for the testimony of the law-enforcement officers investigating their cases. Cops and prosecutors are the good guys. They put criminals in prison, sometimes on death row. Juries tend to believe them when they say someone is guilty. They don’t expect them to exaggerate or withhold evidence. They don’t expect their witnesses to present false testimony.

Yet The Arizona Republic found that, when the stakes are highest — when a trial involves a possible death sentence — that’s exactly what can happen.

In half of all capital cases in Arizona since 2002, prosecutorial misconduct was alleged by appellate attorneys. Those allegations ranged in seriousness from being over emotional to encouraging perjury.

Nearly half those allegations were validated by the Arizona Supreme Court.

Only two death sentences were thrown out — one for a prosecutor’s tactics that were considered overreaching but not actual misconduct because a judge had allowed him to do it.

Two prosecutors were punished, one with disbarment, the other with a short suspension.

There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct.

In fact, they are often congratulated.

Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials, according to The Republic’s examination of court documents.

And when prosecutors push the limits during criminal trials, whether crossing the line into misconduct or just walking up to it, there are risks: Convictions like Milke’s get overturned, even if it takes 24 years, and innocent people, like Ray Krone, go to prison.

See more stories at:
http://www.azcentral.com/news/arizona/articles/20131027milke-krone-prosecutors-conduct-day1.html?nclick_check=1