Monday, December 28, 2009

"Experts" Execute Man in Texas
We cannot blindly trust a prosecutor's or a police officer's claims of certainty or expertise. A moving essay in the New Yorker suggests that a man in Texas may have been executed for a crime he did not commit based on the testimony of experts who did not know what they were talking about.

Cameron Todd Willingham was executed in Texas for burining his own house down and, in the process, killing his three children. Willingham was found guilty at a jury trial based in large part on the testimony of arson investigators who claimed to be experts in determining the cause of fires. They testified that the burn patterns clearly pointed to arson and that they were confident that Willingham started the fire in an attempt to kill his children.

The trouble is that the methods these supposed experts used to make these determinations are totally unscientific and unreliable. Dr. Gerald Hurst, who received a Ph.D. in chemistry from Cambridge University, reviewed the evidence pointing to arson in Willingham's case and concluded that the fire was accidental. It was not caused by arson. As David Grann writes in the New Yorker, "Hurst concluded that there was no evidence of arson, and that a man who had already lost his three children and spent twelve years in jail was about to be executed based on 'junk science.'"

Hurst's scathing report and extensive research strongly suggested that the State of Texas was close to killing an innocent man. But that did not stop the executioner. Willingham was put to death on February 17, 2004. He protested his innocence to the end.

Thursday, December 17, 2009

Innocent Man Freed after 35 Years in Prison

James Bain has spent 35 years in prison after being convicted of some horrible crimes: rape, kidnapping, and breaking and entering. Today, according to the Deseret News, Mr. Bain was released by a Florida Judge.

35 years ago, a jury rejected Mr. Bain's alibi defense and believed the testimony of eye witnesses. Fortunately, DNA evidence was able to prove that Mr. Bain did not commit the crime for which he was imprisoned.

The Florida Innocence Project helped file motions on Mr. Bain's behalf. He had been trying to get DNA tests done on the evidence in his case for years. He is finally free.

Below is an excerpt from the press conference in which an Innocence Project attorney summarizes the case.

Wednesday, December 16, 2009

Faulty Blood Tests in Denver

I recently posted my thoughts on why I became a criminal defense attorney. A recent story from the Denver Post reaffirms the importance of having good, critical defense attorneys.

An internal review of blood tests performed in Colorado Springs showed that at least 82 tests showed a higher blood-alcohol content than they should have. Hundreds of other samples are being retested to find out whether the problem manifested in other cases as well.

The Colorado Springs lab that performed these tests should be commended for trying to correct its mistakes. But this case shows that there is no such thing as a fool-proof test.

Tuesday, December 8, 2009

Being a Criminal Defense Lawyer

People often ask me how I can defend criminals. Some of our clients are accused of some pretty serious crimes. And not all of our clients are innocent. I have had clients tell me in the first interview, "I did it. It was stupid of me and I feel terrible about it." What should a good lawyer do in that kind of situation?

I never imagined that I would be a criminal defense attorney when I graduated law school. I thought I would be a real estate lawyer. One of my first jobs after law school was as a criminal prosecutor for Salt Lake City. I never thought I would be on the other side of criminal prosecution.

But I believe that we all have certain rights. The Constitution guarantees us all the right to remain silent, the right to a trial by an impartial jury, the right to be presumed innocent until proven guilty, and the right to be secure from unreasonable searches and seizures. Even if a person is guilty of the crime, they have those rights. In our system, the prosecutor bears the responsibility of proving the accused guilty beyond a reasonable doubt. If the prosecutor cannot do that, the accused are acquitted even if they committed the crime of which they are accused.

During my first meeting with a client, I will often say something like, "You are hiring me to help protect your legal rights. I will tell you what your legal options are. But, you may want to talk to someone else that you trust about your moral obligations. If you have a clergy person that you trust, you may want to talk to them."

Our nation was founded by people who believed that these rights are so important, everyone should have them even if they have done terrible things. John Adams defended British soldiers who were accused of killing five unarmed colonists in the Boston Massacre. None of the other lawyers in the area would defend the men because the colonies were so incensed by what they had done. Adams wanted to have a political career, but he accepted the call to be their criminal defense attorney even thought he believed it would be political suicide. David McCullough records in his biography, John Adams that Adams wrote this about his defense of the British soldiers: "It was . . . one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country." He believed that sentencing the soldiers to death without a fair trial would have been "as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently." Fortunately, this case did not end Adams' political career and he went on to be president of the United States.

I add my declaration to John Adams'. If we punished criminal defendants without fair trials, we would place a foul stain upon this country. I treasure the liberty that is protected by the United States Constitution and I feel privileged to assert its protections in defense of the accused.

Thursday, December 3, 2009

Become a Legal Scholar for Free

Last month, Google debuted a service that allows anyone to search for legal opinions and legal articles. On it's official
blog, Google states that "Starting today [November 17, 2009], we're enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar."

Why should you or I care that Google has developed a product that allows free searches of legal opinions? Well, legal opinions are law. As judges decide cases, they make rules that we have to follow. So, if you can't read those laws or search for the right ones, you can't follow them or try to change them if you disagree with them. Or, as the Google blog puts it, "Laws that you don't know about, you can't follow — or make effective arguments to change."

Check out Google Scholar - Legal by heading to Click on the button that says "
Legal opinions and journals" and search away. Have fun.

Tuesday, December 1, 2009

Spouses Don't Have to Testify Against Each Other

Tiger Woods was in a traffic accident on Friday and had to be hospitalized briefly. Details of the accident have been sparse, but some have speculated that the accident might have been related to a domestic violence incident.

Woods has said relatively little about the incident, and part of the reason could be his fear that his wife could be prosecuted for domestic violence regardless of his desire for her to be prosecuted.

According to Slate's Hanna Rosin, Florida implemented a pro-arrest policy in 1991 which allows the police to make arrests in domestic violence cases regardless of the desires of the alleged victim. "The decision to arrest and charge shall not require the consent of the victim or consideration of the relationship of the parties."

The argument in favor of these aggressive arrest policies is that police and prosecutors have been reluctant to prosecute domestic violence in the past. Frequently, the alleged victim refuses to testify.

Unfortunately, aggressive prosecution of domestic violence when the accused and the alleged victim are married is nearly impossible if the alleged victim does not want to cooperate. The Utah Constitution provides that "a wife shall not be compelled to testify against her husband, nor a husband against his wife." The result is that if the alleged victim is married to the accused, the victim can refuse to testify. Frequently, there is not enough evidence to proceed with prosecution without the alleged victim's testimony.

Sadly, aggressive prosecutors spend resources prosecuting cases that will never result in convictions. Worse, the accused often has to spend time in jail, and money on bail and attorney's fees, despite the fact that there is almost no chance of a conviction.

Our firm recently got a case dismissed based on the marital privilege. The prosecutor had asked our client to plead guilty before he had a lawyer. The client didn't want to and his wife had said she refused to testify. The client hired us and we called the prosecutor a few times. The prosecutor kept insisting that we couldn't tell the client's wife that she was not obligated to testify against her husband. Eventually, though, the prosecutor saw that he was going to lose the case and decided to dismiss the case rather than be embarrassed at a trial.

The Tiger Woods case and our firm's experience show that some aggressive prosecution schemes for domestic violence cases do not jibe with common sense.

Wednesday, November 25, 2009


Utah law allows certain records of criminal arrests and even convictions to be sealed by following a set of procedures. The process of sealing criminal records is called "expungement." This page explains most of the current requirements for expungement in Utah.

An amendment to the current expungement laws is being proposed in the Utah legislature and may be considered in the upcoming legislative session. The draft language of the bill can be found here.

Kelly Ann Booth
, a Utah attorney who has been closely tracking this proposed legislation says, "The proposed changes in expungement law [will] severely limit people’s ability to expunge convictions." She cites three primary problems with the new law:

  1. New Fees - The proposed changes would include new fees. The new fees will make it more difficult for some people to get access to expungement relief.
  2. Prosecutorial Discretion - The new rules would allow a prosecutor to dismiss criminal charges, and then prevent the accused person from expunging his or her record by refusing to consent to the expungement.
  3. Investigation Exception - The bill would prevent expungement of a crime that is under investigation. Ms. Booth argues that this language should be more precise to prevent a prosecutor from dropping charges and then "investigating" for years a crime that will never be brought to court.
For a long time now, Utah law has recognized that people who have made a few isolated mistakes or been mistakenly arrested should have the opportunity to clean their records. I have read the new bill, and I share Ms. Booth's concerns. Utah's lawmakers should carefully consider whether these changes will accomplish their goals.


Tuesday, November 24, 2009

Criminalize Everything?

police smile while arresting man in handcuffs
The New York Times reports today on a number of cases challenging the expanding scope of federal criminal laws. Groups on the political left, like the ACLU, are arguing against vague laws that infringe on individual liberty and they are joined by some of their old enemies from the political right who believe that federal criminal law is too pervasive.

One book cited by the NY Times article argues that "federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all."

Former federal judge and University of Utah professor Paul Cassell is quoted as saying that federal law allows the government to confiscate an entire yacht if a single joint of marijuana is found on it.

State law can be as pervasive and invasive of liberty as federal criminal law. For example, I prosecuted traffic offenses as a prosecutor for Salt Lake City along with a dozen or so other City prosecutors. I had discussions with them about how difficult it is to follow every requirement of the traffic code. One experienced prosecutor said that, as an experiment, she, a lawyer with extensive knowledge of the traffic code, had tried to drive without violating any of the traffic laws, but was completely unsuccessful.

The penalties for violating Utah's traffic laws do not compare to federal prison time. But a police officer can stop a car that violates the traffic code to investigate the traffic offense. Being detained by a police officer is a major intrusion into our personal liberty. Police frequently stop cars for such minor offenses as operating a vehicle without a functioning tail light, and then find a reason to search the vehicle.

The United States Constitution protects our right to be free from "unreasonable searches and seizures." But when every driver can be stopped by the police and eventually searched, are we really secure in our "persons, houses, papers, and effects?" The federal and the Utah legislatures should reconsider the trend toward criminalizing everything.

Monday, November 23, 2009

Parole in Utah

Utah State capitol

Utah uses indeterminate sentencing for prison terms. That means that if you get sentenced to prison, the judge sentences you to a term of, say, 0-5 years in the Utah State Prison. Then, periodically, you go before the Utah Board of Pardons and Parole which decides whether you stay in prison or whether you are released on parole. As the Salt Lake Tribune reports today, "The board members wield plenty of power, and they know it."

Robert Yeates, one of the board's five members, is my former boss from my days at the Utah Commission on Criminal and Juvenile Justice. I have not appeared in front of him at a parole hearing, but I am confident that he is a fair-minded man who will use the immense power he now has over the lives of prison inmates with as much justice as he can.

Mr. Yeates has served as a prosecutor for Salt Lake County, Third District Juvenile Court judge, the director of the Utah Sentencing Commission, and Executive Director of the Utah Commission on Criminal and Juvenile Justice. He was appointed to the Board of Pardons in March of 2009.

I worked for Mr. Yeates as an intern during law school when he was the Executive Director of the Commission on Criminal and Juvenile Justice. He is a compassionate person who appreciates the effects government decisions can have on the accused in criminal cases, victims, and underserved members of society.

For example, Mr. Yeates and another of my former bosses, Sim Gill, have advocated a more nuanced approach to individuals with mental illness who are incarcerated. They have advanced the idea of a mental health court that would address the unique needs of the mentally ill who overwhelm the jail and prison systems.

I am not convinced that Utah's indefinite sentencing system is the best way to administer justice to those convicted of felonies. But I am pleased that someone as compassionate as Mr. Yeates is serving on this powerful board.

Saturday, November 21, 2009

Update: SL Tribune and D News Pick Up Innocence Story

judge gavel close-up
The Salt Lake Tribune and the Deseret News have picked up Harry Miller's story. Yesterday, I posted a summary of Mr. Miller's struggle to prove his innocence. My summary was largely taken from the Utah Court of Appeals' opinion. The newspaper articles add new detail and humanity to the story. I highly recommend them. Click on the links below to be directed to the stories:

Salt Lake Tribune story
Deseret News story

Friday, November 20, 2009

After 4 Years In Jail, Man Gets Hearing on Innocence

jail or prison bars with bed
Yesterday, the Utah Court of Appeals ruled that Harry Miller is entitled to a hearing to determine his innocence. Miller was originally arrested in 2003 and accused of aggravated robbery. After a jury trial in February of 2004, he was convicted and sentenced to a prison term of five years to life. However, Mr. Miller claimed that he had an alibi. He claimed that on the date he was alleged to have committed the crime of aggravated robbery, he was recovering from a stroke in Louisiana.

Mr. Miller claims that his trial attorney did not go to the trouble of identifying alibi witnesses and that he would have been acquitted if the witnesses had been interviewed. Mr. Miller appealed his original conviction, but before all of the issues on appeal could be addressed, the State agreed to reverse the conviction in the interest of justice. After the reversal, the State decided not to proceed with prosecution.

After nearly four and a half years in jail, Mr. Miller was released in July of 2007. In 2008, the Utah legislature passed a Factual Innocence Statute which allows people who believe they have been wrongly accused to get a declaration of their innocence and compensation for the time that they were wrongly imprisoned.

The State argued that Mr. Miller was not entitled to a hearing on his innocence for technical reasons. The Court of Appeals disagreed with the State and ordered the hearing without deciding whether Mr. Miller will prevail on his claims.

Mr. Miller was represented by Andrew McCullough on appeal and the Rocky Mountain Innocence Center filed a brief supporting Mr. Miller. Utah criminal defense attorney Kelly Ann Booth believes that this decision will require Utah courts to "hear claims of factual innocence without making the person bringing the claims jump through myriad procedural hoops."

Thursday, November 19, 2009

Smart Kidnapper Pleads Guilty

downtown salt lake city skyline as seen from judge memorial high schoolYesterday, in Salt Lake's Federal District Court, Wanda Barzee pleaded guilty to kidnapping Elizabeth Smart in 2002 and unlawfully transporting a minor across state lines. A short story in KUER News provides the details.

Her attorney, Scott Williams, indicated that Barzee will now be available to testify as part of the government's case against her estranged husband, Brian Mitchell.

As horrifying as her crimes are, our country has met Barzee's depravity with calm justice. Rod Exum has a moving column today in the Chatanoogan in which he compares the American justice system to the brutality of Somalia's. It has taken years for Barzee to plead guilty. During those years, judges and doctors and prosecutors and defense attorneys and members of the public and the Smart family have agonized over the question of whether Barzee was competent to be tried. We've spent these years postponing this result because we still believe that it would be more tragic to sacrifice the principles of justice that protect individuals from the government than it would be to delay punishing someone whose sanity is still in question.

Around the world, in Iran, China, Myanmar, and Somalia, powerful governments crush individuals with "quick justice." But often, the crimes committed in the name of justice are as bad or worse than those that were committed by those being punished.

When asked whether he and Elizabeth forgave Barzee, Ed Smart, Elizabeth's father answered, "Absolutely!" Mr. Smart had no obligation to extend mercy to Barzee, but he chose to meet her criminal violence with charity.

Monday, November 16, 2009

Automobile Searches

united states supreme court building in washington d.c.
The law governing automobile searches changed dramatically this year with the United States Supreme Court’s decision in Arizona v. Gant, 556 U. S. ____ (2009). Previously, state and federal courts had interpreted the Supreme Court’s decision in New York v. Belton to allow police officers to search the passenger area of an automobile without a warrant after the passenger had been arrested regardless of the passenger’s proximity to the car. 453 U.S. 454 (1981).

Gant rejects this broad reading of Belton. The Court’s re-interpretation of Belton “authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Gant, 556 U. S. ____ (2009). In Gant, the police searched the defendant’s car after the defendant was handcuffed and sitting in the back seat of a patrol car. The Supreme Court held the search in Gant to be unreasonable because there was no danger that the defendant would be able to reach into the car to access evidence or weapons.

The Gant decision could affect many criminal cases in Utah. Prior to Gant, police officers were generally trained that the passenger compartment of a motor vehicle could be searched without a warrant after an occupant had been arrested no matter how far from the car the suspect was at the time of the search. Gant indicates that any evidence obtained as a result of such a “search incident to arrest” could be suppressed and the prosecution would not be able to present it at trial.

Two Utah cases have applied Gant retroactively to pre-Gant searches. In State v. Brower, 2009 UT App 143, and State v. Hill, 2009 UT App 254, the State of Utah moved to vacate convictions based on searches that violated the principles of Gant even though the searches occurred long before Gant was decided. In Hill, the illegal search occurred in 2007. In Brower, the Court of Appeals' decision does not clearly indicate the date of the search, but the trial court's docket indicates that the offense date was April 28, 2007. In each case, the State, not the defendant, moved to vacate the convictions based on Gant and the Court of Appeals granted the State's request.