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With New Scientific Evidence, Some Shaken Baby Convictions Questioned

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Back in the 1990s, we learned a lot about the serious physical harm that can result if a baby is shaken. While it was probably intuitively obvious to everyone, forever, that violently shaking an infant puts them at great risk of serious injury, a few high-profile cases brought the issue to the forefront. There’s absolutely no doubt that shaking a small child can easily cause serious, sometimes even fatal, injuries.

Now, however, new scientific evidence (longer article here) suggests that some of the testimony used in criminal cases to convict people of child abuse in shaken baby cases may not be as reliable as once thought, and courts may have to re-examine some of their past convictions, to the point that some experts are suggesting that innocent people might have been convicted of crimes they did not commit.

Basically, it’s looking like the internal brain and eye injuries characteristic of the whiplash-like action that shaking induces (which leave few, if any, external signs) have other causes which are more common than once thought. I should stress that this new information doesn’t even suggest that shaking a small child is less dangerous than previously thought; it’s still a recipe for disaster. It just suggests that other somewhat-common accidents can cause similar injuries, and should be considered and thoroughly investigated before a parent is charged with child abuse.

However, whenever evidence like this comes out, we have to face the extremely uncomfortable proposition of re-investigating what were thought to be open-and-shut cases, knowing full well that we may find out that innocent people have been convicted.

Several branches of the Innocence Project, which have long championed the use of DNA evidence to exonerate people wrongfully convicted of crimes, including some people on death row, have turned their attention to shaken baby cases, and this new scientific evidence, particularly in cases involving parents and nannies who had, up to the incidents in question, been model caretakers with no history of abuse or neglect.

While revelations like this are ­certainly upsetting, that should never stop us from re-investigating criminal cases when new evidence becomes available.

After all, our criminal justice system is predicated on the notion that everyone should be presumed innocent until proven guilty, and if the prosecution fails to prove someone’s guilt beyond a reasonable doubt, they must go free, even if everyone agrees that they’re “probably” guilty. This necessarily means that, sometimes, a guilty person will go free. But, that’s the price we, as a society, have chosen to pay in exchange for the knowledge that (at least in theory) it’s extremely unlikely that an innocent person will be convicted and imprisoned.

However, as we’ve seen in other criminal cases, especially when DNA evidence is involved, the justice system values finality almost as much as it values fairness. So, courts are often reluctant to re-open cases where the defendant has been convicted, and exhausted all appeals. At that point, after all, the whole thing is supposed to be finished. But ultimately, everyone recognizes that re-opening these cases, especially when they result in exonerations, is the right thing to do.

Another unsettling element of this story is the fact that many physicians who have built their careers studying and treating injuries characteristic of shaken children have also turned their services as expert witnesses into extremely lucrative side careers. One aspect of the legal system that surprises many people who don’t work in it is the vast amounts of money that expert witnesses can charge for their services.

Intuitively, the idea that a witness in a court of law can charge money for his or her testimony seems ridiculous. And most witnesses cannot (though they can be reimbursed for any expenses the incurred in testifying, such as fuel costs and the like). Expert witnesses, however, can charge thousands of dollars per hour, on the grounds that they usually have to conduct a lot of research and possibly experimentation in preparation for their testimony. In an effort to avoid ethical problems, the fee an expert charges cannot be contingent on the outcome of the case. Nonetheless, there are still concerns that expert witnesses, being paid by the party that’s calling them, might have some incentive to skew the data in favor of their clients. That doesn’t mean that the services of expert witnesses aren’t essential, of course.

But it’s important to remain critical when examining their testimony, and always being open to the possibility that the scientific consensus might change, and that new evidence casting doubt on the outcome of an old case might become available.

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America’s Bail System Needs To Be Reformed

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In case you missed it last week, National Public Radio ran a fascinating three-part series on America’s bail system.  The whole series is available here.  If you happen to have some free time on your hands, you should definitely check it out as it does an amazing job of pointing out how messed up on country’s legal system can be if you’re poor.

The NPR report points out a number of deficiencies with the way America’s bail system is currently set up.  The problem is essentially one of access and the disparities in treatment received by those with money versus those who are lacking in it.

Basically, in America when someone is arrested for a crime, that person is placed in jail until the time of their trial.  This isn’t true for all criminal offenses as laws vary from state to state; however, typically for most felony level offenses the defendant is placed in jail until their trial begins.  The only option for defendants in this situation is to either wait it out in jail or post bail, but without money, jail it is.

The rationale for this holding system is that for those who commit serious offenses, the judicial views these suspects as more likely to try and flee formal prosecution because of the heavier consequence they face compared to those who commit infractions or misdemeanors.

Now certainly the government’s fears aren’t completely unfounded.  A felony conviction carries real prison time, very high fines, and also damages a person’s record, which makes it harder for the convicted defendant to get a job and even qualify for loans.  There’s a lot more reason for someone facing these possibilities to try and run away from police custody versus those who commit lesser offenses.  Forcing them to post bail for their release guarantees that the government can at least recoup some of their losses from having to expend resources to track and re-arrest a suspect who flees the court’s jurisdiction.  It also provides some incentive for the suspect to stay and fight their case as an innocent verdict will entitle the suspect’s bail payment to be returned to them.

However, the problem is that most people arrested for felonies generally don’t have enough money to afford to post bail.  And if you think it’s because bail is overly expensive, you’d be mistaken.  Certainly, bail can be high, but for destitute people, even a couple of hundred bucks can be enough to keep them from being released.  The current bail system can devastate a person’s life, especially the working poor – those with jobs who get paid only enough to survive.  For these people, not being able to post bail prohibits them from working at their jobs and can often cause them to lose their employment and livelihood.  This loss not only hurt the arrestee, but also their loved ones who depend on their income to live.

It’s a heartbreaking situation that’s compounded all the more by the bail bond industry, which for most felony offenders is the only place to turn to for bail money.  Bail bondsmen loan defendants the money needed to post bail.  The catch is that they do it at a high interest rate.  However, if the defendant is found innocent, the loan is returned to the bondsman from the court.  But, as you all are probably already aware, our legal system is quite congested and most criminal cases are dealt with via plea bargaining where the defendant accepts a guilty or no contest plea in exchange for a reduced sentence.  This may be a faster way for the defendant to return to his or her life, but pleading out in this way means that they are now responsible for paying back their bail bond with interest.

The NPR report suggests the better way to handle felony defendants is the get rid of the bail system altogether and use alternative means of monitoring such as ankle bracelets.  This would be much cheaper for tax payers whose money would otherwise go toward housing and feed the suspect while they’re in jail, and it would also allow the suspect to return to their normal lives.  I certainly agree with NPR’s sentiments and support greater use of alternative monitoring for suspects.

However, I wouldn’t go as far as supporting a complete abolishment of the bail system; rather a better way to go about it would be to merge the two monitoring methods.  This can be accomplished by modifying the traditional bail and ankle bracelet systems to be offense-specific.

For instance, more serious crimes, such as manslaughter should require the posting of bail and possibly even an ankle bracelet depending on the crime’s severity.  Lesser felonies on the other hand, such as grand theft, should only require an ankle bracelet and no bail.  This system would ensure that only those accused of serious crimes be subject to the higher bail requirements, while leaving non-violent offenders free to return to their lives while they await their trial.

Now certainly there is always the possibility that an innocent person wrongly accused of a serious felony could end up having their life destroyed under this system.  However, compared to the current system where every felony offender, regardless of their felony’s severity, faces this possibility, the modified system proposed here would ensure that a lot less innocents endure such an injustice.

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The Montana Pot Rebellion and Jury Nullification

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There’s an interesting story coming out of Montana involving what may be one of the most extreme cases of jury nullification I’ve ever heard of. In a criminal case involving possession of a small amount of marijuana, an entire jury panel refused (also seen here) to sit, each of them saying that they would never convict a defendant for possession of a fraction of an ounce of marijuana.

The defendant ended up pleading no contest, which is not an admission of guilt, even though it usually has the same practical effect.

This case raises some extremely interesting questions about marijuana laws, jury nullification, and just how responsive the courts have to be when public opinion is overwhelmingly opposed to a particular law.

First of all, public opinion seems to be shifting against criminalization of marijuana, or at least extremely harsh punishments for its possession and use. Obviously, this is a matter of personal opinion, policy preferences, and priorities, on which reasonable minds can differ.

The fact remains, however, that the public (at least in some parts of the U.S.) is firmly on the side of decriminalization of marijuana, or greatly reducing the criminal penalties for possession of the drug. So, what happens when the state calls on members of the public to serve on a jury where the defendant is charged with an act that the public doesn’t believe should be criminalized?

If you’ve ever been called to jury duty, you probably know the drill: the judge and the lawyers for both sides tell you that you have to render a verdict based solely on the evidence presented by each side, and the law as instructed by the judge. You’re told that you have to put your personal views on a particular law aside, and if you’re unable to, you will probably be dismissed from the jury pool.

However, what the court rarely tells the jury about is the practice of “jury nullification.” This is when a jury finds a defendant not guilty, even if they believe that the prosecution has proven all of the facts alleged against the defendant, because they disagree with the law the defendant broke.

The exact nature of jury nullification is sometimes hard for people to wrap their heads around. It’s not a special right of jurors codified in the constitution, or any other source of law, nor is it some secret cheat code.

It’s simply a by-product of the basic nature of the jury system: when a jury renders a verdict, the jurors don’t have to explain their reasoning. It’s that simple. U.S. courts have held that, while jury nullification isn’t exactly a “right” of jurors, jurors can never be punished for rendering an “incorrect” verdict, unless there is clear evidence of misconduct. In criminal cases, unlike civil cases, a court cannot under any circumstances direct a verdict against the defendant. This makes sense, because our constitutional right to a trial by jury in criminal cases wouldn’t mean much of the jury’s verdict could be easily overridden by the court.

This makes jury nullification an extremely powerful tool, and if juries consistently nullify certain types of criminal charges (charges for possession of a small amount of marijuana, for example), this can render an unpopular law ineffective. After a while, prosecutors start to focus on prosecuting other crimes, and with a law going completely un-enforced, lawmakers may reconsider its wisdom.

However, this case went a step further: during jury selection, every prospective juror stated that they would not convict the defendant, regardless of the evidence, to the point that an unbiased jury could not even be impaneled. I’ve never heard of anything like this happening before, and if you’re in Montana, and believe that marijuana should be decriminalized, you might take this as a sign that public opinion is shifting in your favor.

So, what do you do if you’re picked for jury duty and are strongly opposed to the law that the defendant is charged under? That’s actually not an easy decision. If you simply state your views on the law, the prosecution is almost certain to dismiss you as a juror. However, if you really want to be on the jury specifically for the purpose of nullifying the charges, you have to lie when asked about your ability to be impartial. Obviously, it’s best to simply tell the truth.

Interestingly, David Simon, the creator of The Wire, has called on Americans, when called to serve on juries in cases involving non-violent drug offenses, to vote for acquittal, regardless of the evidence. It’s unknown how effective this campaign has been, but it’s an interesting idea. But is it a good one?

Jury nullification is not without controversy. Some have argued that it amounts to mob rule, and undermines our unique brand of representative democracy (as opposed to direct democracy). On the other hand, if a person is called to serve in a jury – an important civic duty – they effectively become part of the criminal justice system, and can serve in the role of the justice system’s conscience, and can serve as a direct check against government overreaching. If the people are the “fourth branch” of government, jury nullification is their primary means of exercising their power.

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Drop the F-Bomb in Court, Go to Jail for 6 Months

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Free speech and courtroom decorum are two values that our legal system deems pretty important. Obviously, free speech is one of the basic liberties that our legal system was set up to protect. On the other hand, in order for a legal system to be effective, the general public must respect it, and a big part of that is courtroom decorum – observing appropriate standards of etiquette and humility while before a court, either as an attorney or a party.

It’s well-settled that judges have the power to summarily convict and punish anyone who displays contempt of court in the judge’s presence. Some have argued that the law governing contempt is so vague that it can be used to punish virtually anything which isn’t explicitly against the law, but happens to anger the judge. However, that’s not entirely the case. While contempt of court is different from other criminal convictions in that it rarely requires a trial (the judge personally witnessed the entire act of contempt, allowing him to make the necessary determinations of fact), like any other conviction, it can be appealed.

And through this process, appeals courts have greatly clarified, and somewhat limited, exactly what constitutes contempt of court. Generally, disregarding a direct, lawful court order counts as contempt, as does causing a disruption in the courtroom.

Obviously, for the rules against contempt to have any teeth, the law must prescribe punishments for their violation. However, considering the relatively minor harm caused by a single act of contempt, and the summary nature of the punishments, we must be very careful to make sure that the punishment fits the crime.

In one interesting recent case, a criminal defendant was sentenced to six months in federal prison for uttering a single profanity in a courtroom. Upon being sentenced for second-degree murder (he got 26 years, which makes this fight over another six months seem pretty insignificant), the defendant said, quite loudly, “F*** y’all.” Classy.

The judge summarily sentenced the defendant to 12 months in jail. The defendant appealed. The only concession he got was a reduction of the 12 month sentence to 6 months, since that’s generally recognized as the maximum sentence that can be handed down without a trial by jury. Still, six months for a single profanity seems pretty steep.

This is especially true when you consider the importance our legal system places on freedom of speech. The Supreme Court has specifically held that profanity, in itself, cannot be criminally punished. In one famous case, a young man walked into a courtroom wearing a jacket with “F*** The Draft” emblazoned on the back – a protest against the Vietnam War and, obviously, the draft.

He was charged and convicted with disturbing the peace, and the Supreme Court overturned his conviction, holding that a state cannot constitutionally make the mere display of a single expletive a crime.

It seems pretty hard to reconcile this well-settled constitutional doctrine with the court’s actions, besides saying that there’s something fundamentally different between contempt of court and disturbing the peace, or that when it comes to maintaining courtroom decorum, ordinary considerations of free speech don’t apply. Maybe this is the case.

In any event, a little practical information on how to avoid sharing this poor chap’s fate might be in order. If you’re in court, whether it’s about a traffic ticket, a family matter, or even criminal charges, it’s absolutely essential that you show the judge a measure of respect. I’ve made the point before, but when you’re in court, it’s generally a good idea to let your lawyer do the talking.

That’s not a 100% guarantee that there will be no problems. Lawyers are under an ethical obligation to zealously represent the interests of their clients. Generally, there’s no conflict between zealous advocacy and affording the court due respect. Occasionally, however, lawyers will cross a line, and get themselves into trouble.

Thankfully, if it’s your lawyer, and not you who says “F*** y’all,” the lawyer, and not the client, will be punished.

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Lawyers get punched in court: A new meaning to criminal defense?

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Lawyers can be notorious sometimes, but maybe even more notorious are the hundreds of lawyer jokes that surround the profession.  For example:  What’s the difference between a lawyer and a boxing referee?  A boxing referee doesn’t get paid more for a longer fight.

Ok, enough with the punch lines.  But seriously, though, what’s the difference between a lawyer and a boxer?  Nothing apparently, if you ask Pennsylvania lawyer William Bowe, who was punched in court by his client a few weeks ago.  The criminal defense attorney received a box to the ears from his client Eric Floyd, who was on trial for murder and had previously requested to fire Bowe.

It appears that this is nothing new for attorney Bowe.  He also had his lights knocked out six months ago by his client Eric Arms after a jury convicted him of murder.  Ouch.

And it also looks like the entire lawyering profession is getting used to punchy criminal clients.  Consider Connecticut public defender Michael Isko, whose client also punched him in the face before a jury in 2006.  His client was not in handcuffs because he had a cast on his right arm- the same one he jabbed Isko with.  Double ouch.

Or how about attorney Donald Oda, who received lacerations after his client punched him in the eye?  Hopefully he had a good cut-man in his corner.  And then there’s Kentucky public defender Doug Crickmer, whose black eye from a client sucker-punch can be seen here (or the video here).  The list (or the card) goes on and on, really.

So, what kinds of crimes will a defendant be charged with for punching their lawyer in court?  First, the defendant will be held in contempt of court, especially if the punching happened in front of a judge or a jury for everyone to see.  This means a fine and/or jail time.  And then they’ll probably have to face separate charges for the crimes of assault and battery.  This is in addition to whatever charges they are already in court for.

Surprisingly (or not), in the majority of the lawyer-punching incidents we’ve seen, the attorney is gracious enough not to press charges.  This is probably because most of these punch-out cases involve a life sentence for a serious felony, such as murder.  Moreover, many of the attorneys’ clients are under extreme pressure and frustration due to their situation.  Understandably, the defendant already has a lot on their plate.

According to professional conduct rules, defendants who are being charged in a criminal case have the right a new lawyer if they feel that they have received “ineffective assistance of counsel”.  This is what most of the clients claimed before they punched their lawyers.  Maybe all the flying fists will help lawyers think twice about rendering sub-par service to a client.  It looks like the American Bar Association has found a new malpractice deterrent.

In my opinion one good thing about this new phenomenon is, at least it’s not the other way around – you know, lawyers punching their clients.  That would only lead to more horrendous lawyer jokes.  And besides not pressing charges, several attorney-victims like Doug Crickmer have gone out of their way to formally forgive their clients.  At least the profession has maintained some amount of dignity in that regard.

Lawyers who are interested in learning how to take a punch or toughen up a glass jaw might want to find some training tips at the Lawyer-boxer’s blog.  In the meantime we won’t be surprised if someone slips a ringside bell beneath the judge’s gavel.

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