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.