Tuesday, April 24, 2012

Prosecutor’s Note Questioning Witnesses’ Credibility Leads to a Murderer’s Appeal

The Supreme Court of Tennessee recently issued an opinion in Cyrus Deville Wilson vs. State of Tennessee, a case concerning whether a notation in the prosecutor’s file expressing her opinions to the lack of credibility of the State’s witnesses is newly discovered evidence which the defendant may base a petition for writ of error coram nobis (a legal writ issued by a court to correct a previous fundamental error to achieve justice where no other remedy is available).

In the case, Cyrus Deville Wilson was tried and convicted for first-degree murder and sentenced to life in prison. Key to the State’s case were two juvenile eyewitnesses.  Petitioner obtained the District Attorney’s file in this matter which contained handwritten notes wherein the prosecutor had written “good case but for most of [the witnesses] are juveniles who have already lied repeatedly.” Petitioner then filed a petition for writ of error coram nobis contending that this constituted exculpatory evidence that was withheld in violation of his constitutional rights and requested a new trial.  The coram nobis court dismissed the petition.

The Court of Appeals reversed the judgment of the trial court and remanded for an evidentiary hearing. The Court of Appeals held that the petition raises a possible ground for relief, but that numerous facts need to be established before the trial court can determine whether the petition has any merit. Therefore, without an evidentiary hearing there is not enough evidence on the record for the coram nobis court to determine whether the petition has any merit. The state appealed.

The Supreme Court held that the handwritten note expressing the prosecutor’s opinion as to witness credibility was attorney work product. As such it was neither discoverable nor admissible. Thus, the note ought not be deemed newly discovered error on which a petition for writ of error coram nobis could be based. The Court reversed the Court of Criminal Appeals and reinstated the judgment of the trial court.

To read a full version of the opinion click here.


Wednesday, April 18, 2012

Alarming Flaws in Forensic Analysis Revealed

by Janie Parks

The Washington Post reported earlier this week about potential flaws in forensic analysis by the FBI. In the early 1990's the Justice Department began a review of cases where the defendants were convicted in part because of forensic analysis in FBI crime labs. The review focused on cases involving one FBI agent in particular whose methods had been questioned in recent cases. According to the Post, the FBI was aware of its potential flaws in forensic evidence protocol across the agency, but decided to narrow its investigation to just those cases involving one agent. Over a span of 9 years, the investigation revealed hundreds of cases where the forensic evidence was either analyzed in a sloppy manner or was analyzed in the wrong manner by the FBI. The Post formed a task force to conduct its own investigation after obtaining thousands of files pursuant to the Freedom of Information Act. According to its findings, the FBI-led investigation found over 250 convictions in which the scientific review had been completed. What is most troubling about the task force investigation is that it revealed fewer than half of the defendants in the over 250 questionable convictions had been notified that their cases had been reviewed. According to the FBI, they were only obligated to inform the prosecutors of each case. Only about half the prosecutors disclosed the review to the defendants.

The Investigation conducted by the FBI has led to some exonerations of defendants, many of whom were serving life sentences. In fact, many have already served over 20 years. A truly unfortunate case involved Benjamin Boyle, a Texas man on death row. Boyle was executed in 1997, more than a year after the FBI began its review of the forensic evidence in his case. According to the Prosecution's memo, Boyle would not have been eligible for the death penalty without the forensic evidence presented against him. That same forensic evidence may have been poorly handled and could have potentially exonerated him.

What is particularly disturbing about this is the amount of cases they haven't reviewed. How many convicts were convicted due to forensic analysis? How was that forensic evidence analyzed? Two cases in the D. C. Superior Court at the moment were not reviewed by the FBI. However, in both cases, both defendants are seeking exonerations based on invalid hair and fiber analysis.

In the case of Santae Tribble, Tribble was convicted of murdering a taxicab driver in July 1978. Tribble became a suspect and was eventually arrested and charged with the murder. During the trial, an FBI forensic analyst testified that they recovered a stocking a block away from the crime scene with 13 hairs on it. According to the analyst, the hairs were matched to Tribble. After hearing that evidence, and despite the fact that Tribble had a solid alibi, the jury convicted Tribble of murder. He was sentenced to life, and is now on parole. In January, Tribble's attorney was able to have that evidence re-examined. According to the reexamination, none of the 13 hairs on the stocking matched Tribble's hair or shared his genetic profile. However, according to the analyst at trial, the hairs from the stocking matched Tribble's hair "in all microscopic characteristics." Upon re-examination, one of the hairs was found to have characteristics specific to the Caucasian race. Tribble is African American. Further, one of the 13 hairs was found to be of inhuman origin: it belonged to a dog. Needless to say, tribble filed a motion for exoneration and it is currently pending.

Kirk Odom was convicted of rape of a young woman in 1981. The victim identified Odom in a lineup, but later admitted at trial that it was very dark outside. The State presented evidence at trial of a hair found on the victim's nightgown. According to the FBI analyst, the hair found on the nightgown was "microscopically like" Odom's hair. He was convicted and is now out on parole. Again, in January, further tests on the evidence revealed that the DNA sample taken from the hair did not match Odom's DNA. He filed a motion for exoneration on March 14.

It bears repeating that each of these cases were not part of the FBI investigation.

So where do we go from here? I'd imagine it won't be too long before an agency-wide investigation of the FBI forensic analysts is commenced. If that investigation occurs, it will have some potentially shocking and disappointing results. We'll keep you updated.

Tuesday, April 17, 2012

Supreme Court hears argument on cocaine cases

Supreme Court staircase
At 10 a.m. today the Supreme Court heard oral arguments on how to sentence those convicted for dealing in crack cocaine. Two representative case are up for review: Dorsey v. United States and Hill v. United States

The Deputy Solicitor General and an attorney representing one of the those convicted argued that a 2010 law lowering the punishment for crack crimes should be applied to crimes committed prior to when the law was passed. Miguel Estrada will argue against retroactive application of the 2010 law.

Race and criminal law intersect with regard to sentencing discrepancies for crack and powder cocaine. Black people are disproportionately punished for buying or selling the “crack” or “rock” variety of cocaine, which can be easily processed into a smoked version. These convictions come with a much heavier prison sentence. White criminals, on the other hand, are more often punished for dealing in the “powder” cocaine,  and these convictions come with a far more lenient sentence. 

The discrepancies began in 1986 when crack started to sweep the country. Congress passed a law resulting in crack crime sentences that are 100 times more severe than for powder crimes. This difference has been narrowed enormously since then but a difference still remains and Congress has continued to reject the idea of making the penalties identical.

In June 2010, before Congress completed passage of the new law, Edward Dorsey, Sr., pleaded guilty to possessing 5.5 grams of crack, with intent to distribute it. This wasn’t Dorsey’s first conviction and as such he faced a mandatory minimum sentence of 10 years. If the new Act applied to his case, he would have had to sell at least 28 grams of crack (plus the prior conviction) to get the same 10-year sentence. Dorsey was sentenced a month after the new law took effect, and the judge imposed the ten-year sentence.  The Seventh Circuit Court upheld that sentence, refusing to apply the new ratio. They held that it was the date of the crime, not of the sentencing, that controlled.

Years earlier in 2007, Corey A. Hill sold 53.3 grams of crack in a sting operation outside Aurora, Ill. Due to delays at trial his sentencing did not occur until December 2, 2010, after the new ratio law was in effect. If the new Act applied, his sentence would have been no more than 51 months. The judge for his case applied the old ration and imposed the mandatory minimum sentence of 10 years. As in Dorsey, the Seventh Circuit upheld the lower court’s sentence.

The issue before the Court boils down to timing and will revolve around the meaning of an 1871 law. The 1871 law in question is called the “Savings Statute.” It is a lengthy law but, paraphrased, it says that the repeal of any law is not to be understood to erase any penalty or liability that had been “incurred” under the repealed law, unless the law that accomplished repeal says explicitly that it has achieved that result. The old law is deemed to remain in force to implement the penalty or liability that had arisen previously. The law passed by Congress in 2010 lowering the disparity in punishment does not explicitly say whether the old ratio was to be used in any sentencing proceeding after its enactment. 

Lawyers for the defendants will be arguing that congressional intent clearly points to immediate application: “Once Congress completed its historic overhaul of crack sentencing policy,” Congress “wanted those amendments to apply immediately….The clear implication….was that the new mandatory minimums should take effect rapidly so that the Guidelines would have a model against which to ‘conform’ and be consistent.” The defense adds that by overturning the previous sentencing guidelines, Congress did not intend for them to be perpetuated when any sentence was imposed thereafter.  The old sentencing policy, the brief said, had become “discredited.”

There’s no clear answer as to how the justices will rule after today's arguments.

Read:Argument preview: The crack cocaine controversy — again,” by Lyle Denniston, published at SCOTUSBlog.com.


Sunday, April 15, 2012

Gov. Haslam allows evolution bill to become TN law

by Lee Davis

Gov. Bill Haslam allowed House Bill 368/Senate Bill 893, the evolution bill, to become law without his signature.  The governor's move is symbolic in that it signals his opposition but allows the measure to be added to the state code.  The message sent is, however, confusing. The governor can tell bill supporters that he allowed it to become law, and still he will be able to say to the bill's critics that he refused to sign the legislation. Both statements are true, but neither shows leadership. 

The Tennessean reports that the bill became law in Tennessee, "despite a veto campaign mounted by scientists and civil libertarians who say it will reopen a decades-old controversy over teaching creationism to the state’s schoolchildren."  Supporters of the law say it simply allows teachers to critique subjects like evolution or global warming without fear of discipline.

Critics of the legislation say that the purpose of the law is to allow teachers to promote their personal beliefs in the classroom.  The law creates an opportunity for  teachers--who may wish to openly challenge the science of evolution with religious beliefs of creationism and intelligent design--to do so.

Here are the principal passages of the new law.

"The teaching of some scientific subjects, including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning, can cause controversy. Some teachers may be unsure of the expectations concerning how they should present information on such subjects. Teachers shall be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.  {No school official}...shall prohibit any teacher in a public school system of this state from helping students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught. This section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion."

On its face, you can say that this law protects teachers who may wish to criticize evolution and that it allows teachers to counsel students on the weaknesses of evolution, global warming, and human cloning. While many may applaud that move by the Tennessee legislature, it seems that all it really accomplishes is to muddy the waters of established science.  

Teachers should educate our children with the best science and technologies that the world has to offer.  Doing so is the only way the next generation will compete in tomorrow's ever-shrinking global economy.

Below are two tables that show how American students compete in science against their global peers. Students in seven countries scored higher than U.S. 4th-graders in physical science, while in life science and earth science students in three countries scored higher than U.S. 4th-graders. U.S. 8th-graders were outperformed by 8th-graders of another country in 10 instances in physics, in 9 instances in chemistry, and in 5 instances in both biology and earth science.

Table A-16-1. Average science and content domain scale scores of 4th-grade students, by country: 2007

Country (ordered by total score)Total scienceContent domain
Life sciencePhysical scienceEarth science
TIMSS scale average500500500500
Chinese Taipei557541559553
Hong Kong SAR1 554532558560
Russian Federation546539547536
Latvia2 542535544536
United States3,4539540534533

Table A-16-2. Average science and content domain scale scores of 8th-grade students, by country: 2007

Country (ordered by total score)Total scienceContent domain
BiologyChemistryPhysicsEarth science
TIMSS scale average500500500500500
Chinese Taipei561549573554545
Korea, Republic of553548536571538
England1 542541534545529
Czech Republic539531535537534
Hong Kong SAR1,2 530527517528532
Russian Federation530525535519525
United States1,3520530510503525
Source: National Center for Education Statistics

Three questions to Governor Haslam and the Tennessee legislature.  (1)  Given the international competition for jobs and innovation, is now the time to water down quality science education?  (2)  Will Tennessee be a place for ground-breaking science and technology if our school-age children continue to fall behind in science? (3)  Who will lead the change in thinking that international business work requires?

In this world of global competition the cheer that "USA is Number One" needs to be in science.