"Does agreeing to get naked with someone mean it is lawful for them to film you in the buff without your consent? That's the issue before the Wisconsin Court of Appeals in a case brought by a man convicted of secretly taping his girlfriend in the nude at her home.The Madison Wisconsin Capital Times has the full story.
July 2, 2008
Video voyeurism: Wisconsin appellate case
Arson: New frontier for exonerations?
Arson Screening Project launches this week
Shortly before Cameron Todd Willingham’s execution four years ago in Texas for a house fire that killed his three young daughters, four arson experts called into question the scientific evidence underlying his conviction."There's nothing to suggest to any reasonable arson investigator that this was an arson fire," wrote expert Gerald Hurst in his report. "It was just a fire."
Texas' governor ignored the report, and Willingham was executed on Feb. 17, 2004.
Although it was too late for Willingham, two years later fellow Texan Ernest Ray Willis was exonerated after a panel of fire experts working pro bono for the Innocence Project concluded that both fires were accidental. (Their full report is here.)
"Bad science" exposed
In their peer review, the fire scientists noted that many of the "indicators" of arson that were taught in fire investigation courses up into the 1990s have since been "scientifically proven to be invalid." Yet many so-called experts remain woefully uninformed on the current state of the science. Worse, others deliberately distort science, behaving "as if constant repetition would make [their false] assertion true."
The report echoes a 2004 Chicago Tribune investigation of the Willingham case that found that "many of the pillars of arson investigation that were commonly believed for many years have been disproved by rigorous scientific scrutiny."
Based on my former experience as a criminal investigator, I have no doubt that these problems are real, and are likely the tip of the iceberg. I saw many a case in which fire investigators quickly jumped to the conclusion that a fire had been deliberately set based upon the bad character of their prime suspect rather than reliable evidence.
With DNA exonerations starting to max out due to the small fraction of cases in which DNA evidence is collected, the Innocence Project is expanding into other causes of wrongful convictions, including what they call "inexact sciences" and pseudoscientific methods. Old arson convictions are likely to be at the forefront of this new area of scrutiny.
An Arson Screening Project launched just yesterday by the John Jay College of Criminal Justice will lead the charge, scrutinizing the backlog of arson cases compiled by the Innocence Project. Part of the Center for Modern Forensic Practice, the project will collect and evaluate claims of wrongful conviction "based on the use of a faulty, folk-science of fire indicators over the past 20 years."
One of the main dangers of bad science is that jurors tend to trust expert witnesses and to fall for such "science" hook, line, and sinker.
As one of the jurors who sentenced Willingham put it, "Maybe this man was innocent. Now I will have to live with this for the rest of my life."
Among the goals of the new project will be to create a pool of nonpartisan fire experts who can help avoid this outcome by disseminating information about the " 'bad science' arson experience" to other professionals and the public.
Hat tip: Grits for Breakfast
July 1, 2008
Commission recommends major reforms to California death penalty system
California's death penalty system is costly, ineffectual, and on the verge of collapse, according to a just-issued report of the California Commission on the Fair Administration of Justice.
California has the longest delays in executions of any state. Of the 813 people sentenced to die since the death penalty was reenacted in 1977, only 13 have been executed. That's fewer than have killed themselves (14) or died of natural causes (38). Despite the fact that death verdicts are decreasing (last year, only 20 people were sentenced to death in the populous state), the number of people awaiting execution is at an all-time high of 670. The logjam is so great that "California would have to execute five prisoners per month for the next 12 years just to carry out the sentences of those currently on death row," the Commission stated.
A major reason for the long delays is a shortage of competent attorneys at every stage of the process. A condemned prisoner sits on death row for 3 to 5 years before getting a lawyer, waits another 2 years before his first, "automatic" appeal is heard by the state Supreme Court, and waits more years before getting state habeas counsel (291 inmates don't have that attorney assigned yet). That's before even reaching the federal level, where more delays ensue at every stage.
To address the attorney shortage, the Commission is recommending big increases in the stable of state Public Defenders and attorneys at the California Habeas Corpus Resource Center. Such massive funding increases are unlikely, in my opinion, given the current budget crisis and the national trend of slashing defense expenditures (see my June 26 blog post.)
The Commission also recommends more funding at the trial level. The report points out that most death penalty verdicts are getting overturned by federal courts, causing expenditures for costly retrials. The leading cause of such reversals is trial attorneys' failure to adequately investigate potential mitigating evidence, as required under Wiggins v. Smith (539 US 510, 2003).
Part of the reason for that abysmal record, according to the Commission, is that many counties are paying private attorneys a flat fee. This discourages them from hiring investigators and expert witnesses, because the money comes out of their own pocket. The Commission urged the state Supreme Court to increase funding for privately appointed lawyers so that they are paid enough to ensure "high quality legal representation" and so that they obtain the necessary expert services.
The Commission's recommendations to pour massive additional funding into a faulty system are sure to be controversial. The Commission mentions less costly alternatives, including getting rid of the death penalty altogether (as some other states have done) or at least reducing its scope so that only the "worst of the worst" are eligible.
One very sound recommendation is to eliminate felony murder as grounds for death. (see the New York Times editorial by Adam Liptak, "American Exception: Serving Life for Providing Car to Killers," for an excellent discussion of the felony murder rule.)
Narrowing the death penalty's scope to five especially heinous grounds would reduce the current death row population to 368, the Commission said.
The comprehensive report also addresses geographic variations in death penalty implementation. Researchers have found that rural counties in California with high proportions of whites impose death at a higher rate, and - perhaps not coincidentally - people who kill African Americans are less likely to receive the ultimate punishment.
The Commission, created in 2004 to recommend reforms to make the state's criminal justice system fairer, heard from 72 witnesses over a six-month period. In addition to the majority recommendations, the downloadable, 145-page report contains dissenting statements from police and prosecutor members as well as a call for death penalty abolition by commission members from the defense bar.
The Commission is composed of law enforcement, prosecutors, defense attorneys, judges, and citizens. It has already issued a series of unanimous recommendations on other criminal justice issues, including eyewitness identification, false confessions, jailhouse informants, scientific evidence, and wrongful conviction remedies. (See my previous blog post (here) for links to those reports.
San Francisco Chronicle coverage of the report is here. The American Bar Association's study on the death penalty in eight states is here. Critical analysis of the U.S. death penalty by Time and Newsweek magazines are here and here.
California has the longest delays in executions of any state. Of the 813 people sentenced to die since the death penalty was reenacted in 1977, only 13 have been executed. That's fewer than have killed themselves (14) or died of natural causes (38). Despite the fact that death verdicts are decreasing (last year, only 20 people were sentenced to death in the populous state), the number of people awaiting execution is at an all-time high of 670. The logjam is so great that "California would have to execute five prisoners per month for the next 12 years just to carry out the sentences of those currently on death row," the Commission stated.
A major reason for the long delays is a shortage of competent attorneys at every stage of the process. A condemned prisoner sits on death row for 3 to 5 years before getting a lawyer, waits another 2 years before his first, "automatic" appeal is heard by the state Supreme Court, and waits more years before getting state habeas counsel (291 inmates don't have that attorney assigned yet). That's before even reaching the federal level, where more delays ensue at every stage.
To address the attorney shortage, the Commission is recommending big increases in the stable of state Public Defenders and attorneys at the California Habeas Corpus Resource Center. Such massive funding increases are unlikely, in my opinion, given the current budget crisis and the national trend of slashing defense expenditures (see my June 26 blog post.)The Commission also recommends more funding at the trial level. The report points out that most death penalty verdicts are getting overturned by federal courts, causing expenditures for costly retrials. The leading cause of such reversals is trial attorneys' failure to adequately investigate potential mitigating evidence, as required under Wiggins v. Smith (539 US 510, 2003).
Part of the reason for that abysmal record, according to the Commission, is that many counties are paying private attorneys a flat fee. This discourages them from hiring investigators and expert witnesses, because the money comes out of their own pocket. The Commission urged the state Supreme Court to increase funding for privately appointed lawyers so that they are paid enough to ensure "high quality legal representation" and so that they obtain the necessary expert services.
The Commission's recommendations to pour massive additional funding into a faulty system are sure to be controversial. The Commission mentions less costly alternatives, including getting rid of the death penalty altogether (as some other states have done) or at least reducing its scope so that only the "worst of the worst" are eligible.
One very sound recommendation is to eliminate felony murder as grounds for death. (see the New York Times editorial by Adam Liptak, "American Exception: Serving Life for Providing Car to Killers," for an excellent discussion of the felony murder rule.)
Narrowing the death penalty's scope to five especially heinous grounds would reduce the current death row population to 368, the Commission said.
The comprehensive report also addresses geographic variations in death penalty implementation. Researchers have found that rural counties in California with high proportions of whites impose death at a higher rate, and - perhaps not coincidentally - people who kill African Americans are less likely to receive the ultimate punishment.
The Commission, created in 2004 to recommend reforms to make the state's criminal justice system fairer, heard from 72 witnesses over a six-month period. In addition to the majority recommendations, the downloadable, 145-page report contains dissenting statements from police and prosecutor members as well as a call for death penalty abolition by commission members from the defense bar.
The Commission is composed of law enforcement, prosecutors, defense attorneys, judges, and citizens. It has already issued a series of unanimous recommendations on other criminal justice issues, including eyewitness identification, false confessions, jailhouse informants, scientific evidence, and wrongful conviction remedies. (See my previous blog post (here) for links to those reports.
San Francisco Chronicle coverage of the report is here. The American Bar Association's study on the death penalty in eight states is here. Critical analysis of the U.S. death penalty by Time and Newsweek magazines are here and here.
June 27, 2008
Interesting issue of forensic psychiatry journal
The latest issue of the Journal of the American Academy of Psychiatry and Law is now available online. The theme is ethics in forensic psychiatry practice.I found Cheryl Wills' article (here) especially intriguing:
Post-Katrina Juvenile Competency Determinations: A Tale of Two Systems
Natural disasters such as Hurricane Katrina have resulted in the displacement of families to locations throughout the nation. Juvenile courts have been affected by this mass migration of youths. Postdisaster recovery has been slow. Consequently, a cohort of youths has aged out of the juvenile justice system before their juvenile competency hearings could be held. Some of these young adults now face charges as adults in criminal courts. The author explores what happens when youths awaiting juvenile competency determinations age out of the system and face charges as adults. The evolution of the problem, the current situation, case examples, and possible solutions are reviewed.Amnesia and crime
The June issue also includes a point-counterpoint debate on assessing amnesia and crime. Should the approach be neuropsychiatric, as argued by Hal Wortzel and David Arciniegas (here), or psychiatric-clinical, as argued by Dominique Bourget and Laurie Whitehurst (here)?
Review of Campbell's Assessing Sex Offenders
Michael Harlow writes a critical review (here) of the new (second) edition of Terrence W. Campbell's Assessing Sex Offenders: Problems and Pitfalls. (To see the new edition itself at Amazon, click here.)
Legal case summaries
And, last but not least, we get summaries of interesting recent court cases on:
Click here for the full table of contents.
June 26, 2008
Indigent defendants face loss of attorneys
"Starve the Beast" decimating public services
Crumbling schools, shuttered hospitals, unemployment, homeless elderly, the demise of medical and mental health services. It is hard for me to grasp that the catastrophic collapse of America's infrastructure is part of a deliberate, 25-year strategy.
But there is not much doubt that the current crisis is the result of the "Starve the Beast" doctrine of slashing government services through tax cuts, especially for the corporations and the rich. Taxes in the United States are far lower than in almost any other advanced country, while war costs skyrocket.
In the criminal justice system, budget cuts are making a mockery out of the Constitutional right to legal representation. With plea-bargains the norm, trials are becoming an endangered species. In one rural Mississippi county, more than 4 out of 10 indigent defendants plead guilty at arraignment, on the day that they first meet their court-appointed contract lawyers.
The public defenders I work with are staggering under crippling caseloads. Around the country, budget cuts are forcing layoffs of trial lawyers. In some counties, public defense agencies are responding by refusing to handle misdemeanors and even, in some cases, serious felonies.
- In Florida, the Miami-Dade County Public Defender is withdrawing from all felony cases except murder and child rape. Bennett Brummer said this week that his office cannot ethically accept more cases than his attorneys have time to properly handle. A court hearing is set for Friday.
- In Minnesota, the state Public Defender Office is laying off 16 percent of its attorneys (72 of 440), and will stop representing parents in child welfare cases and defendants in some drug court cases.
- In Kentucky, the Department of Public Advocacy will drop about 10,000 to 20,000 cases per year, including involuntary civil commitments and family court cases. The chief justice of the Supreme Court called it an impending legal crisis: "Without adequate defense counsel, the public simply cannot be confident that persons are not being wrongfully convicted of crimes."
- In Atlanta, Georgia, the state public defender is closing one office and laying off lawyers, leaving 1,850 defendants without lawyers. A class-action lawsuit brought by several of the suspects and their attorneys claims the firings will replace adequate representation with “lawyers who meet, greet and plead their clients in as little time as possible."
The crisis bodes poorly for forensic psychologists who make their living in the criminal justice sector. Unqualified attorneys who are simply collecting checks have little incentive to contract for necessary investigation or psychological evaluations for their indigent clients. As in the rural Mississippi county described above, the only way they can make a buck is by strong-arming guilty pleas at arraignment.
More importantly, it bodes poorly for those who are actually innocent. Based on DNA exonerations, Scott Henson over at Grits for Breakfast estimates there are probably about 2,300 to 5,000 innocent people locked up in Texas prisons alone. If the current crisis continues, that number is bound to grow.
The Wall Street Journal's Law Blog, ABC News, and the New York Times have more on the crisis. Hat tip to Bruce for telling me about the conservative "Starve the Beast" doctrine.
June 23, 2008
CA Study: Shockingly low sex offender recidivism
New research in California shows that only a tiny fraction - 3.38 percent - of released sex offenders are convicted of a new sex offense within 10 years of release. The study followed 3,577 prisoners who were released between 1997 and 2007 after serving time for sex offenses.
In an even larger parallel study by California's Sex Offender Management Board, tracking 4,204 paroled sex offenders, only 3.21 percent were convicted of a new sex offense within 5 years of release.
In both studies, almost all of the recidivism came within the first year post-release. Sex offenders were returned to custody for parole violations at a lower rate than other paroled prisoners, despite the fact that they were supervised more intensely. And they were more likely to be rearrested for crimes other than sex offenses.
The findings are consistent with a smaller study two years ago of recidivism by civilly committed Sexually Violent Predators. Of 93 such high-risk offenders released from Atascadero State Hospital without completing treatment, only 4.3 percent reoffended within six years.
The data call into question the dramatically higher recidivism rates cited by state evaluators at Sexually Violent Predator (SVP) civil commitment trials. Those data are based on Canadian research with an actuarial instrument called the Static 99. The Static 99 recidivism base rates are 18 percent after five years and 21.3 percent after 10 years, many times higher than the California data.
The statistical procedure of survival analysis may explain some of this discrepancy, but is unlikely to account for most of it. In survival analysis, an offender who dies or is reimprisoned is removed from the data pool, so that only offenders who are at risk of reoffending are calculated.
Rates of detected recidivism among sex offenders have dropped precipitously in recent years. In a 10-year period, sexual assaults against adolescents age 12-17 dropped by 79 percent; substantiated sexual abuse cases involving children dropped 39 percent in the same period. Possible reasons for the decline include greater public awareness and more severe punishments.
The data are a bit hidden at the California Sex Offender Management Board's website, so I have made them available HERE (5-year study) and HERE (10-year study).
In an even larger parallel study by California's Sex Offender Management Board, tracking 4,204 paroled sex offenders, only 3.21 percent were convicted of a new sex offense within 5 years of release.In both studies, almost all of the recidivism came within the first year post-release. Sex offenders were returned to custody for parole violations at a lower rate than other paroled prisoners, despite the fact that they were supervised more intensely. And they were more likely to be rearrested for crimes other than sex offenses.
The findings are consistent with a smaller study two years ago of recidivism by civilly committed Sexually Violent Predators. Of 93 such high-risk offenders released from Atascadero State Hospital without completing treatment, only 4.3 percent reoffended within six years.
The data call into question the dramatically higher recidivism rates cited by state evaluators at Sexually Violent Predator (SVP) civil commitment trials. Those data are based on Canadian research with an actuarial instrument called the Static 99. The Static 99 recidivism base rates are 18 percent after five years and 21.3 percent after 10 years, many times higher than the California data.
The statistical procedure of survival analysis may explain some of this discrepancy, but is unlikely to account for most of it. In survival analysis, an offender who dies or is reimprisoned is removed from the data pool, so that only offenders who are at risk of reoffending are calculated.
Rates of detected recidivism among sex offenders have dropped precipitously in recent years. In a 10-year period, sexual assaults against adolescents age 12-17 dropped by 79 percent; substantiated sexual abuse cases involving children dropped 39 percent in the same period. Possible reasons for the decline include greater public awareness and more severe punishments.
The data are a bit hidden at the California Sex Offender Management Board's website, so I have made them available HERE (5-year study) and HERE (10-year study).
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