Author Topic: Legal Issues in fighting crime  (Read 18252 times)


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Legal Issues in fighting crime
« on: January 06, 2009, 11:16:59 AM »
New Jersey High Court Hears Witness Intimidation Case

Posted: Tuesday, January 6, 2009
Updated: January 6th, 2009 10:02 AM EDT

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Associated Press Writer


New Jersey's highest court is grappling with one of the thorniest issues facing criminal justice today: what to do in cases where witnesses to a crime have been threatened or intimidated by defendants to the point where they refuse to testify in court.

The issue is a pressing one in areas where intimidation by gang members, drug dealers and other defendants is making potential witnesses afraid they or their loved ones will be harmed or killed if they take the stand.

The state Supreme Court in Trenton heard nearly two hours of arguments Monday on a case that deals with what the state Attorney General's Office calls "the greatest threat" to prosecution in gang, organized crime and domestic violence cases.

The state wants to be allowed let jurors hear the out-of-court statements of witnesses who have been threatened without presenting the witnesses themselves.

But defense lawyers argue that would not be fair to defendants, who have the Constitutional right to confront their accusers in court.

Deputy Attorney General Daniel Bornstein told the court he has read numerous media accounts of witnesses being intimidated or threatened around the state.

"It's gotten so bad that often entire communities are cowed into silence," he said.

Some prosecutor's offices now refuse to prosecute murder cases where there is only one witness, Bornstein said.

The remedy to that is for prosecutors to be allowed to introduce evidence of conversations a witness had with police or investigators outside of court, the state claims.

The case at issue involves a 2001 murder in Trenton.

Dionte Byrd and Freddie Dean Jr. were convicted in 2004 of murdering Charles "Minnesota Fats" Simmons in Simmons' apartment, and sentenced to life in prison with no parole for 30 years.

Helping to convict them was the statement of Kenneth Bush, who told police he rode in a van to Simmons' apartment with Byrd and Dean - both of whom he said were armed - and was smoking crack in the back while they went inside.

Bush said he saw the duo run back to the van and later saw that Byrd had suffered a gunshot wound to the leg. He also said he heard both men discuss the shooting.

Bush refused to testify at trial, claiming he'd been threatened by Byrd and Dean, but the trial court permitted the state to elicit testimony about Bush's statement to police.

An appeals court overturned the convictions in 2007 on the grounds that Bush's statement was improperly admitted into evidence.

Byrd's attorney, Andrew Schneider, told the justices that in their attempt to get the rules changed, prosecutors are using "appeals to fear, anger and revenge - coincidentally the same emotions that get people into trouble."

Many of the justices worried about how to evaluate the reliability of any out-of-court statements that might be sought to be introduced at trials, even as they acknowledged that witness intimidation is a serious problem.

"There are countless cases where a witness gives a statement implicating a person in a crime, and when they get to court, they don't remember anything," said Justice Barry Albin. "There seems to be a climate of fear in certain areas where the witnesses are afraid for their lives to testify in court."

The U.S. Supreme Court allows out-of-court statements to be heard at trial under what is known as the "forfeiture-by-wrongdoing" rule - essentially, that defendants forfeit their Sixth Amendment right to confront a prosecution witness if they wrongfully cause the absence of that witness.

New Jersey's rules of evidence don't include a similar provision, though the state's brief in the Byrd case notes that "at least 31 states and the District of Columbia have adopted the forfeiture rule."

The New Jersey court gave no indication when it might issue a decision.


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Re: Legal Issues in fighting crime
« Reply #1 on: January 07, 2009, 12:14:05 AM »
This is a nationwide trend, but you'll see that it is much more prevalent in places where citizens can't get CCW permits.


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NYT: Exclusionary Rule at risk?
« Reply #2 on: January 31, 2009, 03:07:05 AM »
Supreme Court Steps Closer to Repeal of Evidence Ruling
Published: January 30, 2009
WASHINGTON — In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”

In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography.

This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

“This conduct,” Judge Stanley R. Chesler wrote a week after Herring was decided, “while hardly qualifying as a model of efficient, careful and cooperative law enforcement, does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve its deterrent purpose and outweigh the cost of suppressing evidence.”

Constitutional adjudication is not a science experiment, and it is often hard to say for sure what difference a change in personnel makes. In the case of the exclusionary rule, though, you can get pretty close.


Page 2 of 2)

On Jan. 9, 2006, just months after Chief Justice Roberts joined the court, the justices heard arguments in Hudson v. Michigan. The police in Detroit had violated the constitutional requirement that they knock and announce themselves before storming the home of Booker T. Hudson, and the question in the case was whether the drugs they found should be suppressed under the exclusionary rule

Justice O’Connor, in her last weeks on the court while the Senate considered Justice Alito’s nomination, was almost certainly the swing vote, and she showed her cards.

“Is there no policy protecting the homeowner a little bit and the sanctity of the home from this immediate entry?” she asked a government lawyer, her tone sharp and flinty.

David A. Moran, who argued the case for Mr. Hudson, was feeling good after the argument. “I was pretty confident that I’d won,” he said in a recent interview. “O’Connor had pretty clearly spoken on my side.”

Three months later, the court called for reargument, signaling a 4-to-4 deadlock after Justice O’Connor’s departure. Justice Alito was on the court now, and the tenor of the second argument was entirely different.

Now Justice Stephen G. Breyer, who seemed to have been at work on a majority opinion in favor of Mr. Hudson, saw a looming catastrophe. The court, Justice Breyer said, was about to “let a kind of computer virus loose in the Fourth Amendment.”

Justice Breyer had reason to be wary. When the 5-to-4 decision was announced in June, the court not only ruled that violations of the knock-and-announce rule do not require the suppression of evidence but also called into question the exclusionary rule itself.

In a law review article later that year, Mr. Moran went even further. “My 5-4 loss in Hudson v. Michigan,” he wrote, “signals the end of the Fourth Amendment as we know it.”

Justice Scalia, writing for the majority, said that much had changed since the Mapp decision in 1961. People whose rights were violated may now sue police officers, and police departments are more professional. In light of these factors, he wrote, “resort to the massive remedy of suppressing evidence of guilt is unjustified.”

Justice Scalia cited the work of a criminologist, Samuel Walker, to support his point about increased police professionalism. Professor Walker responded with an opinion article in The Los Angeles Times saying that Justice Scalia had misrepresented his work. Better police work, Professor Walker said, was a consequence of the exclusionary rule rather than a reason to do away with it.

Justice Kennedy signed the majority decision, adopting Justice Scalia’s sweeping language. Oddly, though, he also wrote separately to say that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”

Another important Warren Court decision on criminal procedure, Miranda v. Arizona, appears to remain secure. Miranda, as anyone with a television set knows, protected a suspect’s right to remain silent and the right to a lawyer by requiring a warning not found in the Constitution. The decision, like Mapp, was the subject of much criticism in the Reagan years.

But in a pragmatic 7-to-2 decision in 2000, the Rehnquist Court refused to revisit the issue. Miranda warnings, Chief Justice William H. Rehnquist wrote for the majority, had “become embedded in routine police practice” and had “become part of the national culture.” Justices Scalia and Thomas dissented.

Defenders of the exclusionary rule breathed a sigh of relief in November

“From the point of view of a liberal concerned about criminal procedure,” said Yale Kamisar, a law professor at the University of San Diego, “we were saved by Barack Obama in the nick of time. If ever there was a court that was establishing the foundations for overthrowing the exclusionary rule, it was this one.”

For now, said Pamela Karlan, a law professor at Stanford, “they don’t have five votes to disavow the exclusionary rule by name.”

At the same time, Professor Karlan said, “you are not going to see any dimension along which there is going to be an expansion of defendants’ rights in this court.”


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NYT: Science found wanting in crime labs
« Reply #3 on: February 05, 2009, 06:39:06 AM »
Science Found Wanting in Nation’s Crime Labs
Published: February 4, 2009
Forensic evidence that has helped convict thousands of defendants for nearly a century is often the product of shoddy scientific practices that should be upgraded and standardized, according to accounts of a draft report by the nation’s pre-eminent scientific research group.

Robert L. Stinson, convicted of murder in 1984, was freed from a Wisconsin prison last month after tests found that bite-mark and DNA analysis did not match evidence from the crime scene.


The report by the National Academy of Sciences is to be released this month. People who have seen it say it is a sweeping critique of many forensic methods that the police and prosecutors rely on, including fingerprinting, firearms identification and analysis of bite marks, blood spatter, hair and handwriting.

The report says such analyses are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court. It concludes that Congress should create a federal agency to guarantee the independence of the field, which has been dominated by law enforcement agencies, say forensic professionals, scholars and scientists who have seen review copies of the study. Early reviewers said the report was still subject to change.

The result of a two-year review, the report follows a series of widely publicized crime laboratory failures, including the case of Brandon Mayfield, a lawyer from Portland, Ore., and Muslim convert who was wrongly arrested in the 2004 terrorist train bombing in Madrid that killed 191 people and wounded 2,000.

American examiners matched Mr. Mayfield’s fingerprint to those found at the scene, although Spanish authorities eventually convinced the Federal Bureau of Investigation that its fingerprint identification methods were faulty. Mr. Mayfield was released, and the federal government settled with him for $2 million.

In 2005, Congress asked the National Academy to assess the state of the forensic techniques used in court proceedings. The report’s findings are not binding, but they are expected to be highly influential.

“This is not a judicial ruling; it is not a law,” said Michael J. Saks, a psychology and law professor at Arizona State University who presented fundamental weaknesses in forensic evidence to the academy. “But it will be used by others who will make law or will argue cases.”

Legal experts expect that the report will give ammunition to defense lawyers seeking to discredit forensic procedures and expert witnesses in court. Lawyers could also use the findings in their attempts to overturn convictions based on spurious evidence. Judges are likely to use the findings to raise the bar for admissibility of certain types of forensic evidence and to rein in exaggerated expert testimony.

The report may also drive federal legislation if Congress adopts its recommendations. Senator Richard C. Shelby, Republican of Alabama, who has pushed for forensic reform, said, “My hope is that this report will provide an objective and unbiased perspective of the critical needs of our crime labs.”

Forensics, which developed within law enforcement institutions — and have been mythologized on television shows from “Quincy, M.E.” to “CSI: Miami” — suffers from a lack of independence, the report found.

The report’s most controversial recommendation is the establishment of a federal agency to finance research and training and promote universal standards in forensic science, a discipline that spans anthropology, biology, chemistry, physics, medicine and law. The report also calls for tougher regulation of crime laboratories.

In an effort to mitigate law enforcement opposition to the report, which has already delayed its publication, the draft focuses on scientific shortcomings and policy changes that could improve forensics. It is largely silent on strictly legal issues to avoid overstepping its bounds.

Perhaps the most powerful example of the National Academy’s prior influence on forensic science was a 2004 report discrediting the F.B.I. technique of matching the chemical signatures of lead in bullets at a crime scene to similar bullets possessed by a suspect. As a result, the agency had to notify hundreds of people who potentially had been wrongfully convicted.

In its current draft report, the National Academy wrote that the field suffered from a reliance on outmoded and untested theories by analysts who often have no background in science, statistics or other empirical disciplines.

Although it is not subject to significant criticism in the report, the advent of DNA profiling clearly set the agenda. DNA evidence is presented in less than 10 percent of all violent crimes but has revolutionized the entire science of forensics. While DNA testing has helped to free more than 200 wrongfully convicted people, “DNA was a shock to police culture and created an alternative scientific model, which promoted standardization, transparency and a higher level of precision,” said Paul Giannelli, a forensic science expert at Case Western Reserve University School of Law who presented his research to the National Academy. Enforcement officials, Mr. Giannelli said, “chose to say they never make mistakes, but they have little scientific support, and this report could blow them out of the water.”


Science Found Wanting in Nation’s Crime Labs

Published: February 4, 2009
(Page 2 of 2)

Peter J. Neufeld, a co-director of the Innocence Project, a nonprofit group that uses DNA evidence to exonerate the wrongfully convicted, presented to the academy a study of trial transcripts of 137 convictions that were overturned by DNA evidence and found that 60 percent included false or misleading statements regarding blood, hair, bite mark, shoe print, soil, fiber and fingerprint analyses.

The courts have long struggled with the proper role of scientific evidence. In a 1993 landmark decision, Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court held that scientific testimony had to meet an objective standard. Federal courts have occasionally excluded evidence like handwriting and hair analysis.

Donald Kennedy, a Stanford scientist who helped select the report’s authors, said federal law enforcement agencies resented “intervention” of mainstream science — especially the National Academy — in the courts.

He said the National Institute of Justice, a research arm of the Justice Department, tried to derail the forensic study by refusing to finance it and demanding to review the findings before publication. A bipartisan vote in Congress in 2005 broke the impasse with a $1.5 million appropriation.

Mr. Shelby also accused the National Institute of Justice of trying to infiltrate the forensic study panel with lobbyists for private DNA analysis companies, who were seeking to limit the research to DNA studies.

The National Institute of Justice said it would not comment until the report was released. But a preview of potential turf wars played out in the presentations to the National Academy in December 2007. A forensic expert from the Secret Service blasted the F.B.I. for developing questionable techniques “on an ad-hoc basis, without proper research.”

He said the Secret Service wanted the National Academy “to send a message to the entire forensic science community that this type of method development is not acceptable practice.”

Everyone interviewed for this article agreed that the report would be a force of change in the forensics field.

One person who has reviewed the draft and who asked not to be identified because of promises to keep the contents confidential said: “I’m sure that every defense attorney in the country is waiting for this report to come out. There are going to be challenges to fingerprints and firearms evidence and the general lack of empirical grounding. It’s going to be big.”


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NYC crime stats
« Reply #4 on: January 08, 2017, 09:22:08 AM »
I apologize for not having the citation, but recently I read/saw something about crime stats this past year in NYC actually showing pretty good trends.  Given DeBlasio's policies and feuds with the police, this surprised me quite a bit.  Does anyone have the actual data?


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Re: NYC crime stats
« Reply #5 on: January 08, 2017, 11:54:22 AM »
I apologize for not having the citation, but recently I read/saw something about crime stats this past year in NYC actually showing pretty good trends.  Given DeBlasio's policies and feuds with the police, this surprised me quite a bit.  Does anyone have the actual data?

Keep in mind most crime stats are cooked for political purposes. From ground truth sources, the NYPD is out of the proactive policing business these days.