Tag Archive for 'defendant'

Should People With a Traumatic Brain Injury Be Criminally Culpable?

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By now you’ve probably heard about the tragic incident in Afghanistan, where an American soldier went off-base, entered private residences, and shot and killed 16 Afghan civilians, and wounded several more. He then turned himself in to U.S. forces, and is currently being held, awaiting charges. Presumably, he will be charged with murder and tried in a court martial.

There’s no question that this soldier’s actions were appalling, and this whole event is unbelievably tragic. Furthermore, it’s likely to further inflame tensions between the U.S. and Afghan governments, and almost certainly puts the lives of other U.S. troops in danger because of reprisal attacks.

I hope that the person responsible for this is tried, and if the evidence is sufficient, he’s convicted and punished to the fullest extent of the law.

Any murder trial is going to be long and complicated, even more so when there are multiple victims. However, it looks as though yet another complication has been introduced into the mix: the Pentagon has just revealed that the suspect in the shooting suffered a traumatic brain injury in 2010, but was declared fit for duty shortly afterwards.

It’s virtually certain that this is going to be an issue in the suspect’s trial, and his defense attorney is pretty much guaranteed to try and use it to his client’s advantage.

I recently blogged about how our improving understanding of traumatic brain injury may have legal implications in other areas – namely, football. We’re coming to learn that seemingly “minor” brain injuries can have very serious long-term consequences, increasing the patient’s likelihood of suffering from depression, dementia, and a host of other mental disorders.

This raises the question of whether or not a traumatic brain injury will become a basis for the insanity defense. In general, the insanity defense requires that the defendant suffers from a “mental disease or defect,” and that their mental illness prevented them from appreciating the wrongful nature of their conduct, or made them unable to conform their conduct to the law. The insanity defense is, by design, incredibly difficult to employ successfully. Only about 1% of criminal defendants even attempt to use the defense and it only succeeds about 25% of the time it’s attempted. So overall, the insanity defense is successful in around one quarter of one percent of criminal cases in the U.S.

And a verdict of not guilty by reason of insanity doesn’t mean the defendant automatically walks free. Just because someone is found to lack their mental faculties to the point that they can’t be held legally culpable for their actions, they may still be a society. Usually, if a person is found not guilty of a violent crime by reason of insanity, they are committed to a mental hospital.

They can be held in a mental hospital as long as they’re deemed to be a threat to society, or to themselves. This means that, in theory, a person who successfully employs the insanity defense may well end up being confined in a mental institution for a longer period of time than they would have spent in prison if they’d been convicted. If you’ve ever seen a movie that depicts someone trying to use the insanity defense, these facts are probably overlooked.

Obviously, it’s far too early to comment on whether or not the suspect in this case qualifies for the insanity defense.

But, there’s no question that mental illnesses that have been linked to traumatic brain injury are going to become issues in more and more criminal cases, particularly with relation to the insanity defense.

As in most high profile cases where the insanity defense is involved, this particular case will probably lead to a public debate over whether or not the insanity defense should even exist, or what form it should take.

I personally believe that it should exist, and that our current standards are fine. If one of the essential elements of imposing criminal liability for someone’s actions is that they acted intentionally, there comes a point where someone suffers from a mental illness so severe that they can’t actually form intent, or understand what they’re doing. In those cases, I think it’s unfair to blame the defendant in the same way you’d blame a criminal who was perfectly sane.

I hope that this tragic case, whatever its ultimate outcome, does not cause us to lose sight of the fact that having an insanity defense is not mutually exclusive with protecting society from dangerous criminals.

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Simple Blunder Puts Up to 1,000 California DUI Convictions at Risk

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Driving under the influence of alcohol (DUI) is one of the most commonly-committed crimes in the U.S.

DUI trials are so common that they’re usually the first trials that new prosecutors and defense attorneys are assigned to, because the procedure is usually pretty much the same. In almost every case, a key piece of evidence that the driver on trial was, in fact, drunk is their blood alcohol content (BAC) at the time of their arrest. This is most often determined through the use of a device that can test a person’s BAC in the field, usually a Breathalyzer or similar device.

However, there have always been questions about how accurate and reliable these testing devices are, especially if they are improperly used or maintained. For that reason, police departments have strict rules in place regarding how these devices are stored, maintained, and used. Of course, that doesn’t mean that these rules and procedures are always followed to the letter.

Case in point: hundreds of DUI convictions in San Francisco may have to be thrown out because some officers of the San Francisco Police Department may have improperly tested and maintained the equipment that’s used to conduct BAC tests.

Without going into the details of how the technology behind these devices works (because I don’t fully understand it, either), I’ll provide a basic overview: most devices that measure BAC via a person’s breath need to be calibrated every week or so. Otherwise, they become increasingly inaccurate as time passes. This calibration is done by using canisters of air that contain a known amount of alcohol vapor, which is applied to the testing device. By doing this, you can gauge how accurate the tester’s readings are, and then make any necessary adjustments.

There’s now concern that the police department did not conduct these accuracy checks properly, which means that hundreds of people may have gotten DUI convictions based on bad evidence.

This is a very serious issue, and it’s a bit like the fiasco of the San Francisco crime lab a few years ago. In that case, the drug lab of the SFPD found out that an employee had stolen drugs for their own personal use, and the subsequent investigation revealed widespread evidence tampering.

In this present case, the calibration logs on the BAC detectors showed that they gave perfectly-accurate readings every time they were tested for re-calibration. Given that their accuracy naturally deteriorates over time without regular adjustment, it’s impossible for them to give perfect readings in these regular tests. This indicates that the tests weren’t being done, and the people responsible for testing them simply falsified their logs.

So, everyone who was tested with an inaccurate device was convicted, at least in part, based on bad evidence.

Unfortunately, this is going to be a huge headache for the court system. As many as 1,000 cases, dating back to 2006, will have to be re-opened and investigated all over again.  That’s a problem, since you can’t exactly go back in time and re-test a defendant’s BAC at the time they were arrested.

Many people will probably look at these facts and claim that many convicted criminals are getting off on “technicalities.” And in some way, they may be correct. I would bet that, in the majority of the cases that have to be reviewed, the defendant was actually guilty of driving with a BAC above the legal limit when they were arrested. But if the tests were inaccurate, there’s an excellent chance that a significant percentage of them, even if it’s not a majority, were innocent. Of course, it will largely be impossible to tell which is which. And this is the exact reason why all cases in which the irregularities in the testing devices create reasonable doubt as to a suspect’s guilt should be overturned.

There’s one thing that it’s essential to remember in cases like this: in all criminal cases, even “minor” ones like DUI, the burden of proof rests entirely with the prosecution. The defense attorney could sit at the defense table without saying a word, introducing a single piece of evidence, or calling a single witness. And if the jury found that the prosecution failed to provide enough evidence to convince them beyond a reasonable doubt that the defendant is guilty, the jury has no choice but to find the defendant “not guilty.” It doesn’t matter if they believe that the defendant is “probably guilty,” if they can still entertain reasonable doubt as to that fact.

In most DUI cases, a malfunctioning BAC tester, even if it’s only off by a little bit, could introduce reasonable doubt as to the defendant’s guilt, even if it’s not the only piece of evidence that led to their conviction. In those cases, the only appropriate course of action is to overturn the defendant’s conviction.

And if this means that some people convicted of DUI will escape the consequences of their crime, so be it. That may sound harsh, but the principle that everyone is presumed innocent until proven guilty is one of the basic cornerstones of our legal system. If we abandon this principle, absolutely nothing good can come of it.

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Is the “Low Sodium Defense” The New Twinkie Defense?

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No. And, come to think of it, the “Twinkie Defense” isn’t really a real thing, either (more on that later).

Anyway, a man in Michigan is currently facing trial for the murder of his own mother. His lawyer has told the media that he plans to claim that a sodium imbalance caused him to become delusional, and that he should be found not guilty by reason of temporary insanity (also reported here).

I predict that this case is going to lead to a lot of outcry about our “broken justice system,” with pundits decrying how easy it is to squirm away from justice with an insanity defense. This makes for good television. Between the 24-hour news cycle and indignation apparently becoming our national pastime, we’re always looking for new things to get mad about. However, perhaps we should find things that are actually worth getting mad about, because the insanity defense most definitely does not fit the bill.

For reasons that still aren’t clear to me, the insanity defense has gotten a really bad rap in recent decades. I’m really not sure why. After all, in our criminal justice system, most crimes have an element of intent: in order to convict a defendant, the prosecution must show that they acted with mens rea (“guilty mind”), in addition to proving that they actually engaged in the unlawful conduct they’re accused of. This mens rea typically takes the form of intent (i.e., in addition to showing that the defendant engaged in the unlawful conduct they’re accused of, it must be shown that they intended to engage in that conduct).

If a person’s mind is so warped that they are unable to act with any form of intent, or to understand the nature of their actions, and they’re able to prove this, they cannot, by definition, commit murder. This is because there is no intent to kill when they act. Such a person is obviously not as morally culpable for their actions, no matter how serious the harm is.

That’s not to say that you can’t take legal action against such people. If a person is found not guilty by reason of insanity, they are typically committed to a mental institution. This is not to punish them, but simply to protect society from any future violent conduct they might engage in. A person committed in this way can remain in the mental institution until they are deemed to no longer pose any threat to themselves or others. In some cases, this might never happen, which means that the patient can be institutionalized indefinitely, perhaps for a longer period than the prison sentence they would serve if convicted.

So, being found not guilty by reason of insanity is definitely not the ticket to freedom that some people seem to think it is. Furthermore, the insanity defense is successful in a tiny, tiny minority of cases. The insanity defense is only raised in less than 1% of all criminal trials in the United States. And, when the defense is employed, it’s only successful 25% of the time. This means that criminal defendants are found not guilty by reason of insanity in less than one quarter of one percent of all cases.  This is party because the insanity defense is extremely difficult to prove. As with all affirmative defenses, the burden of proving the facts necessary to establish an insanity defense rests entirely on the defendant.

An insanity defense requires far more than a simple showing that the defendant suffers from a mental illness. However, mental illness is a necessary (but not sufficient) element.

In order to succeed in an insanity defense, it must be shown that the defendant suffers from a “mental disease or defect” – basically a mental illness. It must further be shown that the mental illness is so severe that it either renders a person incapable of conforming their conduct to the law, or of understanding the nature and consequences of their actions. This is a very high hurdle.

However, it seems that, whenever there’s a case that involves an insanity defense, and has even slightly unusual facts, people jump on it, and wildly misconstrue the facts. In this case, I have no doubt that this man’s sodium imbalance will morph into “a low-sodium diet” once it’s been filtered through the blogosphere, and made its way into the ultimate den of anti-factualism: chain emails.

It’s not as if there isn’t precedent for this. Remember the “Twinkie Defense?” When John White killed San Francisco Supervisor Harvey Milk, and mayor George Moscone, he was convicted of manslaughter, rather than murder, on the basis of “diminished capacity” (similar, but not identical, to the insanity defense). And some of the evidence that supported this defense involved White’s consumption of junk food.

If you ask just about anyone about this case, they’ll probably tell you that Dan White got off because he claimed that eating a bunch of junk food made him go crazy. Of course, that’s not what happened at all. The defense pointed out that Dan White was something of a health nut, but a few months before the killing he began eating nothing but junk food, and neglected his health in other ways. This was simply one piece of evidence to show that he suffered from severe depression. But nobody ever claimed that it was a cause.

I have no doubt that, if this case gets some real media attention, the same thing will happen. I don’t know what causes such hostility to the insanity defense, but I really wish people would drop it.

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If You’re Charged With Felony Murder, Don’t Sucker Punch The Prosecutor

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You know, losing can be tough.  Whether it’s a game of basketball, a hot dog eating contest, or even when you’re just trying to out-do your neighbors in a dazzling display “who has the bigger television,” the feeling of not being up to snuff is undoubtedly an awful one.

But what’s even more difficult than losing is fighting the urge to be a sore loser and act out against your fellow competitors and/or the audience.  However, if you ever find yourself in a losing position, it’s important to fight this urge because as the old saying goes, “nobody likes a sore loser.”  And nowhere is this more true than in the courtroom, because there they not only dislike sore losers, they always hold a particularly high disdain against violent ones who attack the opposing counsel.

Yep, an Oklahoman man by the name of Emanuel “E Man” Mitchell recently demonstrated the best way to not win over a jury.  Mitchell was standing trial for felony murder and conspiracy.  But when the prosecutor, Oklahoma County District Attorney David Prater, began giving his argument to the jury over the proper punishment for Mitchell, E Man snapped and jumped out from his chair to take a swing at Prater.  Luckily, Prater was able to take the sucker punch like a champ and unfortunately for Mitchell, Prater was able to give it back a little bit better.  The District Attorney pushed Mitchell back and caused him to topple over and dislocate his shoulder.  Quite a push indeed.  Prater came out of the scuffle mostly unscathed with only minor cuts and bruises, while Mitchell had to be sent to the hospital for his injuries.

This story also serves as a perfect example on how to lose major street cred.  I’d be horrified if I ever got beat up by some paper pushing attorney.  But I can’t imagine having it happen in front of a whole room of people, especially when everyone knows who I am.  If I was Mitchell, I’d be searching for the nearest hole right about now because I wouldn’t want to be seen until the whole thing blows over.

Speaking of Mitchell, though the length of his punishment has yet to come down, I think I’m going to go out on a limb here and say that the jury will probably try and put him away for the maximum time allotted.  I haven’t read the case brief, but let’s just call it a hunch.  (UPDATE: The jury recommended Mitchell be given life in prison)

One of the crimes Mitchell was charged with, by the way, is an interesting oddity worth exploring since many legal laypeople may be unfamiliar with it.  On first glance, the term “felony murder” may seem like any old murder charge where a person is accused of killing someone else.  But it isn’t.  Felony murder actually is a term used to describe a crime in which a third party is killed because of a felony committed by the defendant.  It’s a bit of an oddity because the defendant doesn’t actually have to be the person who kills the third party, the defendant only needs to be in the process or cause of a felony level crime committed that resulted in the murder.

Sound a little confusing?  Don’t worry, I’ve yet to meet any first-year law student who wasn’t a little bewildered by the concept.  It’s definitely one that is better explained by way of an example.  In Mitchell’s case, he’s accused of ordering his 16-year-old cousin to rob a drug store.  However during the robbery, Mitchell’s cousin was shot and killed by the store owner.  Thus the felony (the robbery) was started because of Mitchell’s orders and because his cousin was killed, under the felony murder rule, Mitchell can now be charge with his cousin’s murder.

See why it can be sort of a tough rule to comprehend?  There are many variables to consider when trying to show that a person is liable under this law.  But the most essentially element is whether it can be shown that the murdered third party was killed as a consequence relating to the felony.  The standard used to measure this, as well as the limits to actual law itself, vary from state to state.  It can be very confusing, which is why critics of the felony murder rule often point to this as one of the major faults with the law.  Specifically, that the connection between felonies and deaths that occur can often be very tenuous, and yet a defendant can easily have the charges against them exponentially increased under the felony murder rule even if the defendant can’t really be held liable for a third party’s death.

Mitchell’s case is a good example of the felony murder rule applied correctly, assuming all the facts reported are true.  The rule is designed to hold defendants responsible for the consequences of their crimes, after all.

But problems arise in those cases that aren’t quite as clear cut.  Say for instance if Mitchell’s cousin was able to rob the drug store successfully and instead went home with the ill-gotten goods.  If among the stolen items procured by Mitchell’s cousin was a bottle of poisonous pills that was mislabeled as aspirin and Mitchell’s cousin then took the pills and died from them, would Mitchell than be liable under the felony murder rule?  Depending on the state, the jury, and the skill of the attorneys, he may or may not be.  That’s the inherent problem with the rule, the abundant gray area.

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Informing the Public of Jury Nullification: Is It Jury Tampering?

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I’ve written before about jury nullification. I generally believe that it is a great tool that the general public has at its disposal to render laws it disapproves of ineffective. And despite some of its negative consequences, it is an invaluable check on the power of the government, but many jurors are not aware that they have a right to acquit a defendant for any reason, regardless of the weight of the evidence against them

Perhaps in an attempt to remedy this fact, a political activist has spent much of his free time standing in front of a federal courthouse, giving passersby pamphlets containing information about jury nullification, presumably in the hope that some of them would be jurors, and that they would take his message to heart.

This conduct is clearly protected speech, right? Surely, what he’s doing couldn’t be considered a crime. Apparently, some would disagree: he’s been arrested and charged with jury tampering.

It should be noted that the defendant had no idea which, if any, of the people he spoke with were jurors. He didn’t ask anyone if they were a juror, and did not discuss particular cases. The literature he passed out was simply a general explanation of the concept of jury nullification.

I would understand the government’s actions completely if this person were singling out jurors, or discussing specific cases. After all, the integrity of the jury system is essential to the functioning of our criminal justice system. And one of the most important elements of that integrity is insulation from outside influences.

On the other hand, when jurors consider the evidence presented to them, and weigh it against the law as instructed to them by the judge, they’re not expected to forget about their life experience, and the common sense they’ve hopefully acquired as people living in the real world. After all, we’re entitled to a trial by a jury of our peers, and, as our peers, jurors are expected to use their common sense and experiences, which they presumably share (to a degree) with the defendant.

If jurors learned about, and formed their opinions on, jury nullification through the ordinary course of their lives, it’s obvious that there would be no problem with this. I don’t see why it should be any different if a juror happens to find out about jury nullification right before serving on a jury.

After all, courts have repeatedly held that jurors are allowed to engage in jury nullification without any repercussions, so it probably shouldn’t matter if they learned about the concept of nullification a month or an hour before serving on a jury.

On the other hand, if the defendant were distributing information about cases he knew were being tried at that courthouse, and airing his opinions of a defendant’s guilt or innocence, he would probably be committing a crime, especially if it could be shown that he was knowingly targeting individual jurors.

This appears to be a pretty clear-cut case of political advocacy, which is unambiguously protected by the First Amendment.

Hopefully, this case will be dismissed on First Amendment grounds, before it goes any further. One of the most basic elements of a free society is the right to express information and ideas without fear of any legal repercussions. This right is just as essential (if not more essential) when it is applied consistently to protect unpopular speech.

Many people may simply believe that a guy handing out pamphlets in front of the courthouse is a crackpot or rabble-rouser. They’re free to believe that, and he could be, for all I know. But that shouldn’t matter, even if it’s true.

Even if you believe that his ideas are wrong, I don’t see how one could be opposed to letting him freely express them.

Now, the right to free speech is not 100% absolute, and can be balanced against compelling government interests. And there’s no doubt that the government has a very strong interest in maintaining the integrity of the jury system. However, it’s hard to argue that this man’s conduct did any significant harm to the jury system.

If anything, informing jurors of this important check on state power only strengthens the jury system.

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