Category Archives: Prison

Reducing Recidivism

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In an article titled, “The Nearly Perfect Recidivism Machine”David J. Krajicek, a contributing editor with The Crime Report, discusses a book written by Texas criminologist William R. Kelley.

“One would have to look far and wide to find a greater public policy failure than the American criminal justice system,” says Kelly in the opening chapter of his new book, From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice (Rowman & Littlefield).

William R. Kelly

Krajicek writes that Kelly, a University of Texas-Austin sociology professor, has long been one of the country’s toughest justice critics. In this book, he offers a plan for top-to-bottom transformation of the system, in collaboration with federal judge Robert Pitman and psychiatrist William Streusand.

Kelly suggest reforms to rein in the charging powers of prosecutors. He recommends the creation of independent panels of clinical experts that would screen offenders and recommend to prosecutors who ought to be diverted to treatment.

“There is nothing about punishment that changes the underlying conditions, disorders and deficits that the majority of criminal offenders bring into the justice system,” Kelly says. Arrestees with mental illness, substance-use disorders, homelessness and other problems churn through the system and into prison, where the underlying issues that led to a lawless life are ignored.

In a conversation with TCR Contributing Editor David J. Krajicek, Kelly explains why he believes the system should incorporate more carrot and less stick for offenders and how the Trump administration’s approach threatens to make things worse. He also suggests that the public already has a more sophisticated view of how to fix the system than our political leaders.

The Crime Report: What is the impact of the country’s justice policy failures?

William R. Kelly: The short financial and statistical answer is that over the past 45 years, we have spent $1 trillion on the war on crime, $1 trillion on the war on drugs and have accomplished a recidivism rate of 65 percent. Nearly all of this effort has focused on trying to punish crime out of people, based on naïve conceptions of criminality such as “hanging around with the wrong people” and “making bad decisions.” The evidence is quite clear that crime has much more complex origins and correlates.

What we have accomplished is a nearly perfect recidivism machine, placing all of us at the unnecessary and avoidable risk of criminal victimization, and wasting extraordinary amounts of money.

TCR: You refer to “the culture of American criminal justice.” What are its key characteristics and how do you change it?

Kelly: It is squarely based on the “tough on crime” mantra. This has dictated the decisions of legislators, prosecutors, judges, and corrections officials. The focus over the past 45 years has been driven by retribution and misguided assumptions that punishment deters re-offending. The question that has been routinely asked is how much punishment does this offender deserve. A more productive question for many offenders is how do we reduce the likelihood a particular offender will reoffend…

We need to provide clear incentives to motivate changing how we think about crime and punishment. Cost-benefit analyses conclusively show that behavioral change through clinical intervention like mental health and substance use disorder treatment is much more effective and cost efficient. The financial advantages should motivate legislators and local government officials. Reducing recidivism should be an incentive for prosecutors, judges, public defenders, and probation and parole officers, who will benefit from reductions in caseloads. Then there is the greater good of enhanced public safety, something we incorrectly assume the justice system already does.

TCR: You say the facile American view of crime and punishment got us here. Have voters grown more sophisticated, or are reform-minded pols still at risk of being Willie Hortoned?

Kelly: Public opinion data demonstrate that much of the public has a more nuanced view of crime and punishment than many legislators, prosecutors and judges. The public believes that the purpose of corrections is to rehabilitate offenders and therefore reduce recidivism. Many have moved beyond “lock ‘em up and throw away the key.”

Unfortunately, many policymakers, elected officials and some segments of the public still seem to be holding on to the idea that criminals are just bad people deserving maximum punishment. I’m sorry to say that Willie Horton is alive and well…There appears to be a reluctance to really embrace meaningful, comprehensive criminal justice reform.

TCR: You write, “We have arrived at the nadir of politics and policy.” Did you write that before or after Donald Trump’s election?

Kelly: I wrote that before Trump was elected when I incorrectly believed that we had already reached bottom. Who would have thought that anyone with any sense of history and even a superficial exposure to the evidence would run as the law-and-order candidate and resurrect the war on drugs?

TCR: How do you demonstrate that “tough” and “dumb” are synonyms when it comes to criminal justice?

Kelly: You focus on the enormous financial waste that the justice policy has produced. While there will be endless debates about what’s right or just and who deserves what, it is pretty hard to ignore the bottom line. A recent study estimates that the criminal justice and collateral social costs of tough on crime is $1 trillion per year. And it’s hard to reconcile 65 percent recidivism.

TCR:  Who’s to blame for the state of “correctional malpractice” you say we are in?

Kelly: First and foremost, elected officials who have blindly championed “tough on crime” policies to their political benefit, but to the detriment of public safety and the prudent use of tax dollars. State legislators and Congress have provided the mechanisms for tough on crime—mandatory sentences, restrictive parole release laws, and an ever-expanding criminal code that seems to make criminal justice the go-to system for just about every social ill.

But the culpability of elected officials goes well beyond that. The vast majority of offenders in the criminal justice system have a substance-use disorder, 40 percent are mentally ill, and 60 percent have had a least one traumatic brain injury often leading to neurocognitive dysfunction…The decision to not properly fund public health, schools and social welfare agencies has created problems that by default are managed by the criminal justice system.

Criminal justice reform means much more than merely reforming the criminal justice system. It requires massive changes to and investment in a variety of collateral institutions.

TCR: Your book articulates and recommends a scientific approach to justice reform. Yet science is out of favor in Washington and many state houses. Is there a scientific path forward?

Kelly: Yes there is, but I am afraid that we need to disguise it for some, by minimizing the science and emphasizing the public safety benefits and cost savings.

TCR: You note an overlooked data point: The country has 21 million people with substance-use disorders, the world’s third-highest rate. What explains this particular American exceptionalism?

Kelly: It is largely a result of the lack of public substance abuse resources, including inadequate treatment capacity and insurance coverage. Much of it can be attributed to the failure of the war on drugs and the belief that we can either punish or threaten substance abuse out of people. Criminalizing substance abuse rather than treating it as a public health problem has led to the failure to provide adequate funding for treatment.

Unfortunately, the picture is bleaker. The majority of substance abuse and mental health treatment in the U.S. is paid for by Medicaid. Current versions of repeal and replacement of the Affordable Care Act call for substantial cuts to Medicaid. That does not bode well for a problem that is crippling the country, the economy, communities, families, and the justice system.

TCR: You write that we have used an absurdly simplistic approach (lock ‘em up) for a boundlessly complex problem. Explain briefly the research on co-morbidity among inmates.

Kelly: The vast majority of offenders in the criminal justice system have clearly identifiable disorders, deficits and impairments. Many have more than one disorder, known as co-morbidity or co-occurring disorders. For example, the majority of offenders with a mental illness also have a substance-use disorder. Neuro-cognitive problems are often co-morbid with mental health and substance abuse. It does not require a clinician to appreciate that “lockin’ ‘em up” does nothing to alleviate these conditions and in fact typically exacerbates them.

When we do attempt to address these problems–diversion to a drug court or a mental health court–our focus is on just one crime-related condition. Our correctional treatment and rehabilitation efforts typically ignore co-morbidity.

TCR: What do the rest of us in a presumably civilized society owe these damaged people?

Kelly: I don’t think it’s so much what we owe them, but what do we owe ourselves: lower crime and recidivism, lower risk of being victims of crime, and lower cost of criminal justice. We have the tools to accomplish these things, but making it a political priority has been elusive.

TCR: You compare the U.S. system to those of Germany and Holland; it doesn’t stack up well.  You cite one lesson we can learn from those countries: “If you treat inmates like humans, they will act like humans.” How is it possible that we don’t know that already?

Kelly: In order to justify our draconian and dysfunctional reliance on punishment, we need to think of criminals as “not like us” in fundamental ways, as deserving retribution and harsh punishment. Punishment is what we have been told is the only thing “these people” will understand.

Psychological research confirmed a long time ago that, in most cases, incentives work much better than punishment for changing behavior. This is another example of the disjuncture between scientific evidence and criminal justice policy.

 TCR: Your key recommendation is an “unprecedented expansion” of diversion away from court toward intervention and treatment. Describe the panel review process you suggest.

Kelly: Traditional criminal prosecution, conviction and punishment are entirely appropriate for many offenders. For example, violent offenders and chronic, habitual offenders probably need to be separated from society through incarceration in the interest of public safety. For many others, such as non-violent offenders and many drug offenders, we have a much better chance of reducing recidivism by diverting them and mitigating the factors that are associated with their criminality. One of the key issues here is making good decisions about who to divert and who to prosecute.

We developed the concept of independent panels of clinical experts to facilitate better decision-making, both in terms of who should be diverted and what treatment or intervention will decrease the probability of recidivism. Offenders often have complex clinical needs that require the special expertise of psychiatrists, psychologists and clinical social workers who can assess and diagnose, determine the risk of re-offending, and make recommendations to prosecutors.

The goal is to divert appropriate individuals away from traditional prosecution to situations where their risk can be supervised and managed and where they can receive adequate treatment and intervention.

TCR: And this is the “disruptive innovation” of your book title?

Kelly: The panels are part of it. Implementing this concept will require a substantial shift in how prosecutors do their jobs, as well as how we think about crime and punishment. In effect, this requires changing the criminal justice culture.

We also argue that all levels of government need to address major deficiencies in public health, a fundamental consideration in assuring adequate capacity and expertise for intervention and treatment. The bigger picture is that criminal justice reform requires disruptive innovation of collateral institutions, such as public health.

TCR: And how might it be greeted by prosecutors, who hold all the power right now?

Kelly: This will not be easy. However, reasonable incentives for prosecutors should be recidivism reduction, in turn reducing caseloads.

The primary reasons that prosecutors’ caseloads are so large and unmanageable relate to the failure to reduce recidivism.

TCR: You say these changes will force us to redefine success in our justice system. How so?

Kelly: Success should be measured by recidivism rates, something directly related to performance of criminal justice. As it stands now, there really is no accountability. Everyone involved in criminal justice–legislators, police, prosecutors, defense attorneys, judges, and corrections officials–should all be held responsible for recidivism reduction. That would also be a disruptive change.

TCR: Tell me about the process of partnering with Robert Pitman and William Streusand in this book.

Kelly: I wrote the book, but both Pitman and Streusand played very important roles in devising solutions. For example, Pitman, a former U.S. Attorney who is now a federal judge, brought his knowledge and expertise to the task of developing statutory and procedural details for how the expert panels would fit into the roles and responsibilities of prosecutors, defense counsel and judges.

The input of Streusand, a psychiatrist, was crucial in the development of the clinical protocol for the expert panels and assessing offender dysfunction, as well as the discussions about fixing public health.

TCR: You were going through a serious health crisis while writing this book, as you point out in the introduction. I hope you are doing well. I wonder if that diversion somehow informed the book’s content.

Kelly: Thank you. I am in complete remission and feel very blessed. To be honest, it could not have worked out any better. I was diagnosed in early March of 2016, when I had a rough draft of one chapter written. I was so fortunate that I had this project to distract me from the reality of being pretty sick and going through some difficult chemo. It was also fortuitous that I had two collaborators who are very good friends and played important roles in my recovery.

I’m not sure that being sick informed the content, but I suspect it influenced the tone. If I sound impatient at times in the book, it is probably a result of being confronted with the reality that life is short.

My opinion? Excellent article, and excellent book by Mr. Kelly.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Crime & Safety in America

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According to an article from the Crime Report, U.S. violent crime rates are lower than they have been for four decades, and prisons’ impact as a crime deterrent “is minimal at best.” Apparently, the Vera Institute of Justice gave two new briefing papers which countered the political rhetoric and unfounded assumptions which influence criminal justice policy.

The Prison Paradox

In The Prison Paradox, author Don Stemen summarizes the weak relationship between incarceration and crime reduction, and highlights proven strategies for improving public safety that are more effective and less expensive than incarceration. He writes that, despite its widespread use, research shows that the effect of incarceration as a deterrent to crime is minimal at best, and has been diminishing for several years.

“Indeed, increased rates of incarceration have no demonstrated effect on violent crime and in some instances may increase crime,” writes Stemen. “There are more effective ways to respond to crime—evidenced by the 19 states that recently reduced both their incarceration and crime rates.”

The report suggests that policymakers should adopt “crime reduction strategies that seek to engage the community, provide needed services to those who are criminally involved, and begin to address the underlying causes of crime.”

Measuring Public Safety

In Measuring Public Safety, author Bruce Frederick examines erroneous conclusions about current crime trends—using both existing and original research—and describes how to avoid common pitfalls when interpreting statistics on violent crime.

“With a few hyper-localized exceptions that require targeted attention, violent crime rates are lower today than they have been at any point over the past four decades,” says Frederick. “However, this era of public safety has been misrepresented by some media reports and public commentary concluding that violent crime increases in a few cities equal a sweeping national problem.”

Apparently, over-generalizing data on homicides from a small sample of major U.S. cities has led to premature conclusions being drawn about a nationwide reversal of the general decline in violent crime.

Such reports were “unfounded,” the Frederick says, adding that today’s relatively lower crime rates are “not a cause for complacency because some of our communities are experiencing significant increases in violent crime.”

My opinion? It’s important for criminal defense attorneys to be informed and aware of crime trend data. Oftentimes, our judiciary mistakenly cites unproven or misinterpreted data when they hand down lengthy prison sentences to citizens convicted of crimes. Therefore, it’s important to “fact check” and assist our judiciary in making clear, reasonable decisions whenever possible using studies like those mentioned above.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Life Sentences Increase

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Article by Samantha Michaels of Mother Jones discusses how one out of every nine prisoners in the United States is currently serving a life sentence—a record high—even as the overall prison population has fallen.

That’s according to a depressing new report by the Sentencing Project, an advocacy group that’s been tracking life sentences since 2004. Almost 162,000 people are now serving life behind bars, up from 132,000 about a decade ago and 34,000 in 1984.

To put that in perspective, for every 100,000 people in America, 50 have been locked up for life. That’s roughly the total incarceration rate—including inmates whose sentences are just a few months—in Scandinavian countries like Denmark, Sweden, and Finland.  And it doesn’t even account for the tens of thousands of Americans handed sentences of 50 years or more, which are considered “de facto life sentences,” says Ashley Nellis, a senior research analyst at the Sentencing Project who co-authored the report.

What’s driving the uptick? It’s not a rise in violent crime or murder—both have dropped substantially since the mid-1990s. Nor is it an increase in the number of criminals behind bars: A majority of states saw declining overall prison populations from 2010 to 2015.

According to Michaels, the continuing rise in lifers is a legacy of three-strikes laws and mandatory minimum sentencing.

“It may also be related to the shift away from capital punishment,” she says. She further elaborates that in some states that no longer allow executions, elected officials like governors and prosecutors have championed life-without-parole sentences—which account for the biggest increase in life sentences nationally—as a way to appear tougher on crime.

“Going forward, we will have a system that allows us to put these people away for life, in living conditions none of us would want to experience,” Connecticut Gov. Dannel Malloy, a Democrat, said in 2012 when his state abolished the death penalty. But these lengthy punishments probably aren’t keeping the public safer. “The impulse to engage in crime, including violent crime, is highly correlated with age,” the Sentencing Project notes. “Most criminal offending declines substantially beginning in the mid-20s and has tapered off substantially by one’s late 30s.”

The biggest losers of all this? Minorities. Of all the lifers and de facto lifers in the country, almost half are African American. What’s more, 12,000 of the total are locked up for crimes they committed as kids, though some are eligible for release thanks to recent court decisions.

In 2010, the Supreme Court ruled that life-without-parole sentences are unconstitutional for juveniles who didn’t commit homicide. In 2012, the justices went further, saying that mandatory life-without-parole sentences for kids, including those who committed homicide, are also unconstitutional. Nineteen states and DC now ban any kind of life-without-parole sentence for juveniles.)

Finally, according to Michaels, it’s important to remember that many of the prisoners serving these long sentences never actually hurt anyone: Two-thirds of lifers or de facto lifers in the federal system committed nonviolent crimes—and one-third of them are serving time for drug crimes.

With Attorney General Jeff Sessions at the helm of the Justice Department alongside his team of tough-on-crime advisers, there’s a good chance that won’t be changing anytime soon.

My opinion? I couldn’t agree more.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State Senate Passes Bill Making Fourth DUI a Felony.

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The WA State Senate has unanimously passed a bill that would make driving under the influence (DUI) a felony if the driver has three or more prior offenses on their criminal record within 10 years.

Senate Bill 5037 passed Thursday and now heads to the House, where it has stalled in previous years. The bill’s sponsors are as follows: Padden, Frockt, O’Ban, Darneille, Miloscia, Kuderer, Zeiger, Carlyle, Pearson, Conway, Rolfes, Palumbo, Angel, and Wellman.

Under the measure, a person who is charged with a fourth DUI, and has no other criminal history, would be subject to a standard sentencing range of 13 to 17 months in jail.

However, this bill allows first-time felony offenders to spend up to six months in jail, instead of nine, and finish out the rest of their sentence under supervision, such as attending Alcoholics Anonymous meetings and other programs.

My opinion? We shouldn’t be surprised. Over the past 20 years, Americans have seen a significant increase in the harsh penalties for intoxicated drivers. Perhaps this is necessary move given the thousands of lives lost to drunk drivers. Speaking as a criminal defense attorney, there’s serious question as to whether people commit these violations purely out of willful disregard for the law and for the safety of others or because of an untreated mental illness or alcohol addiction. Nevertheless, public outcry has led to increased sentences.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Exonerations On the Rise

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News reporters Alanna Durkin Richer  and Curt Anderson of the Associated Press wrote an article describing how last year, 68 out of 157 exonerations were cases in which the defendant pleaded guilty. In Trial or Deal? Some Driven to Plead Guilty, Later Exonerated the article describes the difficult dilemma of many defendants in the criminal justice system: either accept the Prosecutor’s plea offer or risk facing much harsher consequences if found guilty at trial.

Apparently, more than 300 of the more than 1,900 people who have been exonerated in the U.S. since 1989 pleaded guilty, according to an estimate by the National Registry of Exonerations. The registry is maintained by the University of Michigan Law School using public information, such as court documents and news articles.

Last year, 68 out of 157 exonerations were cases in which the defendant pleaded guilty, more than any previous year. The numbers reflect an overwhelmed criminal justice system with public defenders taking more cases than they can handle; as well as court officials who try saving the government money with plea bargains compared with costly trials.

The data is even more daunting. Last year, more than 97 percent of criminal defendants sentenced in federal court pleaded guilty compared with about 85 percent more than 30 years ago, according to data collected by the Administrative Office of the U.S. Courts. The increase in guilty pleas has been a gradual rise over the last three decades.

No one knows exactly how many innocent people are behind bars for pleading guilty. Sociologists have estimated that between 2 and 8 percent of people who plead guilty are in fact innocent.

The article emphasized how defendants who were exonerated after pleading guilty often have prior criminal records and come from poor backgrounds and are not well-educated. They’re typically represented by public defenders juggling dozens of cases in a day.

Many exonerees were cleared of wrongdoing by taking a new look at DNA evidence in blood or other body fluids, according to the University of Michigan database. Some were the victims of prosecutorial misconduct, while shoddy police work was to blame in other cases — such as a mistaken FBI hair analysis or falsified fingerprint evidence. Some falsely confessed because of improper interrogation techniques while others maintained their innocence throughout.

Making the matter worse, it’s not just prosecutors and defense attorneys who seek to cut plea deals. The article said many judges prefer that route, too. Judges who resolve cases rather than let them languish tend to be seen as more successful. Similarly, explained the article, prosecutors who close cases tend to rise faster in their careers.

My opinion? People facing criminal charges MUST seek experienced defense counsel to defend their rights, investigate the facts, interview witnesses, argue pretrial motions, put their clients in the best light possible and conduct an active; fair trial when necessary.

Pleas contact my office as soon as possible if you, a friend or family member is facing criminal charges. The epidemic of increased exonerations due to injustice in our courts as well as our incoming administration’s trampling of individual rights shows a growing need for competent representation. Put simply, defendants should not plead guilty to criminal charges they are not guilty of.

Premeditated Murder Unproved.

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Homicide & Manslaughter, Jury Trial, Lesser Included Jury Instruction, Prison, Prosecutorial Misconduct, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Hummel, the WA Court of Appeals Division I reversed a defendant’s conviction for first degree murder due to insufficient evidence of premeditation. It reasoned that proof of a strong motive to kill the victim does not, in itself, establish planning or the method of killing. Because the prosecutor did not request the court instruct the jury on murder in the second degree, the Court dismissed the case with prejudice.

The facts are interesting. Two juries in Whatcom County Superior Court found defendant Bruce Allen Hummel guilty of killing his wife, Alice Hummel. Both were retired Alaska teachers. Their two daughters lived on Alabama Hill in Bellingham in the early 1990s. This case was heavily covered in the Bellingham Herald.

The story begins with Mr. Hummel informing their children that their mother decided to move away and leave the family. Over the years, the girls continued to receive letters and gifts in the mail from Alice. Bruce Hummel told the girls Alice had earned a promotion and moved to Texas.

In 2001, the girls reported their mother missing in 2001. They recalled the strange circumstances of their mom’s disappearance. Bellingham police detectives found only traces of their mother’s existence: a current driver’s license from Alaska, monthly disability deposits from a teachers’ retirement system in Alaska, and withdrawals from a bank account in Alaska. Once detectives confronted him with $340,000 in disability checks he had collected under Alice’s name, Mr. Hummel admitted Mrs. Hummel had been dead for years. He claimed she committed suicide by cutting her wrists. Her body was never found.

Hummel was convicted of 12 counts of wire fraud in federal court, for the theft of the disability checks, then charged with murder in the first degree in Whatcom County.

At his first trial in August 2009, Hummel of first-degree murder in August 2009. He appealed as he started serving a sentence of 45 years in prison. The Washington State Court of Appeals found, in 2012, that that there was sufficient evidence to prove the case, but that Hummel’s rights were violated during voir dire, when potential jurors were questioned in private about sensitive issues in their personal lives. (Many other similar, serious cases have been overturned in Washington for not undertaking what is called the Bone-Club analysis, essentially a checklist to avoid violating a defendant’s right to a public trial).

At his second trial in May 2014, Hummel was again convicted of first-degree murder. This time he was sentenced to 26 years in prison, a shorter term because the Court of Appeals found his federal crimes should not count toward his criminal history because there was no comparable state law to federal wire fraud in 1990.

Hummel appealed with assistance from the Washington Appellate Project. Hummel argued there was insufficient evidence to support the conviction because the State did not prove beyond a reasonable doubt the essential element of premeditation.
The Court of Appeals agreed. It reasoned that no trier of fact could have found beyond a reasonable doubt that Hummel killed Alice with premeditated intent to commit murder in the first degree. Reversal for insufficient evidence is “equivalent to an acquittal” and bars retrial for the same offense.  Also, the Court reasoned that the Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in prior proceedings. Because the prosecutor did not request the court instruct the jury on the lesser included crime of murder in the second degree, the Court of Appeals held it could not remand to enter a judgment on murder in the second degree.
The Court of Appeals reversed and vacate the conviction for premeditated murder in the first degree, and remand the case back to Superior Court to dismiss the conviction with prejudice.
My opinion? This isn’t over. I’m certain the State shall appeal to the WA Supreme Court.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Marijuana Arrests Increase.

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Excellent article from reporter Timothy Williams of the New York Times discusses a new study by the American Civil Liberties Union and Human Rights Watch which reveals that marijuana arrests were about 13.6 percent more than the 505,681 arrests made for all violent crimes, including murder, rape and serious assaults.

The report comes in the wake of the fatal police shooting of Keith Lamont Scott last month in Charlotte, N.C. Mr. Scott, 43, had attracted police attention in part because, the police said, he was smoking marijuana.

The report is the latest study to highlight the disparate treatment African-Americans often receive in the criminal justice system, including disproportionate numbers of blacks who are sent to jail when they are unable to pay court-imposed fees, or stopped by the police during traffic stops or while riding bicycles. Its many findings are disturbing.

THE REPORT’S FINDINGS:

  • Although whites are more likely than blacks to use illicit drugs — including marijuana, cocaine, heroin, methamphetamine and prescription drugs for nonmedical purposes — black adults were more than two-and-a-half times as likely to be arrested.
  • In Iowa, Montana and Vermont — places with relatively small populations of African Americans — blacks were more than six times as likely to be arrested on drug possession charges than whites.
  • In terms of marijuana possession, black adults were more than four times as likely to be arrested as white adults in the 39 states in which sufficient data was available.
  • In Manhattan, where blacks make up about 15 percent of the population, African-Americans are nearly 11 times as likely as whites to be arrested on drug possession.
  • African-Americans may also be more apt to face arrest, according to researchers, because they might be more likely to smoke marijuana outdoors, attracting the attention of the police.
  • The above disparities persist whether there are few or many African-Americans in a given area.

Mr. Williams also wrote that, according to criminologists, African-Americans are arrested more often than whites and others for drug possession in large part because of questionable police practices. Police departments, for example, typically send large numbers of officers to neighborhoods that have high crime rates. A result is that any offense — including minor ones like loitering, jaywalking or smoking marijuana — can lead to an arrest, which in turn drives up arrest rate statistics, leading to even greater police vigilance.

“It is selective enforcement, and the example I like to use is that you have all sorts of drug use inside elite college dorms, but you don’t see the police busting through doors,” said Inimai M. Chettiar, director of the Justice Program at New York University’s Brennan Center for Justice.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Voodoo Science” Debunked

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Interesting article from the Wall Street Journal written Alex Kozinski , a judge on the Ninth Circuit Court of Appeals since 1985, discusses how the U.S. has relied on flawed forensic evidence techniques for decades, resulting in false convictions.

According to Judge Kozinski, the White House released a report that fundamentally changes the way many criminal trials are conducted. The new study from the President’s Council of Advisors on Science and Technology (PCAST) examines the scientific validity of forensic-evidence techniques—DNA, fingerprint, bitemark, firearm, footwear and hair analysis. It concludes that virtually all of these methods are flawed, some irredeemably so.

The study indicates that only the most basic form of DNA analysis is scientifically reliable. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms, says Judge Kozinski, “Bitemark analysis is about as reliable as astrology.” Yet many unfortunate defendants languish in prison based on bad science.

Even more disturbing, the article states that forensic scientists – who are often members of the prosecution team – sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury, says Judge Kozinski. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Apparently, problems with forensic evidence have plagued the criminal-justice system for years.

The PCAST report recommends developing standards for validating forensic methods, training forensic examiners and making forensic labs independent of police and prosecutors. “All should be swiftly implemented,” says Judge Kozinski, who adds that preventing the incarceration and execution of innocent persons is as good a use of tax dollars as any:

“Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.”

My opinion? Jurors rely HEAVILY on forensic evidence in their deliberations. And it makes sense: it’s a huge task to weigh evidence and sift through the rhetoric of arguments from the prosecution and defense. Cold, hard, quantifiable and scientific facts make it easy for jurors to render decisions.

Consequently, the information from this report is both good and bad news. It’s good because the truth about  “voodoo science” in the courtroom has finally surfaced to the mainstream. It’s bad because hundreds, if not thousands of innocent people are convicted of crimes and serve years in prison based on unreliable evidence for crimes they didn’t commit.

Fortunately, there’s hope. According to Judge Kozinski, the report “provides a road map for defense lawyers to challenge prosecution experts.” Excellent.

Competent attorneys should immediately gain an understanding of challenging prosecution experts who bring voodoo science in the courtroom. It’s the only way to shed light on this grim subject and bring justice to our courts.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Joining” Multiple Offenses

Bellingham Defense Attorney, Due Process, felony, Joinder, Jury Trial, Prior Bad Acts, Prison, Rape, Robbery, Sentencing, Severance, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Bluford, the WA Court of Appeals Division I decided a trial court correctly joined a defendant’s multiple counts of robbery for one trial. The similarities between the crimes were adequate for the offenses to be cross admissible to establish a modus operandi.

The State charged Charles Bluford with nine felony counts. These included seven counts of Robbery in the First Degree plus a charge of Rape in the First Degree of one victim and Indecent Liberties of a separate victim.

The State initially charged Bluford under three different cause numbers, but moved to join all the counts for trial. Bluford moved to sever five of the counts from the others. The court considered these cross motions at the same hearing and joined all counts for trial.

The jury found Bluford guilty of eight counts and acquitted him of one count of Robbery. It sentenced him to life without the possibility of release. Bluford appeals.

The Court of Appeals began by discussing the statute and court rule regarding the “joinder” of criminal offenses. RCW 10.37.060 states the following:

When there are several charges against any person, or persons, for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments or informations the whole may be joined in one indictment, or information, in separate counts; and, if two or more indictments are found, or two or more informations filed, in such cases, the court may order such indictments or informations to be consolidated.

Also, CrR 4.3 says the following:

Two or more offenses may be joined in one charging document, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: (1) Are of the same or similar character, even if not part of a single scheme or plan; or (2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

The court reasoned that the joinder rule promotes the public policy goal of conserving judicial resources. Also, joinder is appropriate unless it is so “manifestly prejudicial” that it outweighs the need for judicial economy. In other words, courts may not join offenses if it would prejudice the defendant.

The court applied the four-factors guide from State v. Cotten to determine whether prejudice results from joinder:

(1) the strength of the State’s evidence on each of the counts; (2) the clarity of the defenses on each count; (3) the propriety of the trial court’s instruction to the jury regarding the consideration of evidence of each count separately; and (4) the admissibility of the evidence of the other crimes.

The Court applied the Cotten factors.

First, the Court of Appeals reasoned that the trial court correctly determined that the strength of the State’s evidence for each count was equivalently strong.

Second, Bluford asserted a general denial for each count. Therefore, he could not have been prejudiced by inconsistent defenses because his defenses were all the same.

Third, Bluford argues that the court’s instructions to the jury at the end of the case did not instruct the jury that it could not consider the evidence of other crimes as propensity evidence. However, Bluford failed to request such an instruction. And the trial court is not required to give such an instruction if the defendant fails to request one.

Fourth, the court determined that the evidence of each count would be cross admissible for the other counts for the purpose of showing modus operandi. It reasoned that although ER 404(b) prohibits introducing evidence of other bad acts as propensity evidence, such evidence is admissible for other purposes, such as proof of motive, plan, or identity. Under the modus operandi exception, evidence of other bad acts is admissible to show identity if the method employed in the commission of crimes is so unique that proof that an accused committed one of the crimes creates a high probability that he also committed the other crimes with which he is charged. The modus operandi must be so unusual and distinctive as to be like a signature.

In Bluford’s case, the trial court determined that the crimes were cross admissible for the following reasons:

Each incident occurred within an approximately two month period. Each incident occurred during hours of darkness. Each incident occurred in the Seattle metro area. Each incident occurred in a residential area. The defendant was a stranger to each victim. In each incident, the victims were alone when  . . . a male approached with a handgun and gave verbal demands to the victims. The descriptions of the handgun by the victims are similar. Four of the victims gave a description of the vehicle, which matches the vehicle the defendant was later found inside. Two of the three female victims were sexually assaulted during the course of the robberies. Although one of the female victims was not sexually assaulted during the robbery, she ran away at the time of the robbery, thereby limiting the opportunity for the defendant to sexually assault her . . . Therefore, although none of the incidents are a carbon copy of the others, the incidents are strikingly similar. Additionally, in each case the perpetrator approached the victim as he or she exited a car. And when the victim did not cooperate, the perpetrator forcefully took his or her property or assaulted the victim.

Consequently, modus operandi was proven. Finally, because Bryant failed to renew his motion to sever during trial, he technically failed to preserve for review the issue of severance.

Bluford’s convictions were upheld. However, the Court of Appeals vacated his sentence of life without the possibility of release and remanded for resentencing.

My opinion?

At trial, Prosecutors commonly try joining a defendant’s multiple offenses. As stated above, doing so creates judicial efficiency and shows propensity evidence under ER 404(b). Still, competent defense attorneys should try to sever multiple counts anyway; and most important RENEW THE MOTION DURING TRIAL. Failing to do so effectively waives the issue to be preserved for appeal.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

High Court Strikes Racism in Jury Selection

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The U.S. Supreme Court just sent a strong message about racism in the justice system.

In Foster v. Chatman, the Court reversed a defendant’s murder conviction after discovering that the Prosecutor systematically eliminated African American jurors from serving on Mr. Foster’s jury because of their race.

Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury.

Foster argued that the State’s use of those strikes was racially motivated, in violation of Batson v. Kentucky. The trial court rejected that claim, and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas corpus proceeding.

While that proceeding was pending, Mr. Foster’s defense attorneys used the Georgia Open Records Act to obtained the Prosecutor’s file used during trial. In notes, prosecutors had highlighted the African Americans on several different lists of potential jurors. On one list, under the heading “Definite NOs,” prosecutors listed six potential jurors, all but one of whom were black.

Eventually, the U.S. Supreme Court granted review of the case on the issue of whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

The Court reasoned that the Georgia Supreme Court’s decision that Foster failed to show purposeful discrimination was clearly erroneous. They started with Batson’s three-step process for adjudicating claims such as Foster’s. First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, the trial court must determine whether the defendant has shown purposeful discrimination.”

Here, and in sum, the Court reasoned that Foster established purposeful discrimination in the State’s strikes of two black prospective jurors:

” . . . along with the prosecution’s shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was motivated in substantial part by discriminatory intent . . . the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

My opinion? Good decision. The decision is a forceful blow against racism in the courts. Although the Foster decision won’t end racial discrimination in jury selection, it is certainly vindication for the potential jurors who weren’t allowed to fulfill their civic duty all those years ago because of their race. As for Foster, his future is still in limbo. The Supreme Court’s decision entitles him to a new trial before a jury of his peers that hasn’t been tainted by racial discrimination. Still, that mere fact doesn’t guarantee a different outcome. The new jury may come to the same conclusion as the old one. But if nothing else, Mr. Foster’s death penalty has likely been put off for many years to come. And in the world of death penalty litigation, that counts as a win.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.