Deliciously Unrealistic Due Process Violation

 - but people think this kind of stuff is true.

Civil Asset Forfeiture Nightmare

"One [pot] plant in the backyard should be like growing squash."

Click here to read the Boston Globe report headlined, "Never come between an 81-year-old and her marijuana plant."   The Amherst, Mass. resident whose plant was confiscated was incensed that the police used a helicopter to locate her backyard plant.  "Plain view" includes "plane view."

Apparently, medical marijuana use is legal in Massachusetts, but growing it yourself is not.

. . . It's What you Can Prove in Court.

An earlier post employed a movie clip from the movie, Law Abiding Citizen, featuring a prosecutor's explanation that, "it's not what you know, it's what you can prove in court" to explain to a victim's father the agreement to a plea bargain for her accused killer.  That story was fiction.  This story is fact.

In Kansas, a man originally charged with murder for severing the head of an acquaintance with a guitar string was sentenced to just over 4 years in jail following a plea agreement to a reduced charge of involuntary manslaughter.

According to the Topeka Capital Journal:

On March 14, 2014, a former girlfriend of [the defendant] testified he told her he killed [the victim], by using a guitar string to sever the victim’s head, then disposed of the body and kept the head in a bag. A part of the victim’s skull was discovered March 24, 2012, at a house in rural Carbondale in Osage County when [a woman] who lives with . . . the defendant’s father, said she was searching for mushrooms. Instead, she found the top of [the victim’s] skull. 

However, as it came time to proceed to trial: 

Other than a portion of the victim’s skull, prosecutors didn’t have the victim’s body, the murder weapon hadn’t been recovered, not all the prosecution witnesses were available, and prosecutors faced “credibility issues” with a major witness, [the prosecutor] said.

Not suprisingly, the family of the victim was outraged.  But, "it's not what you know, it's . . . "

A Post-Racial Legal System?

Today is the 150th Anniversary of the surrender of the Confederate Army of Northern Virginia to the Union Army of the Potomac in the American Civil War.  So it seems that a Civil War themed post is appropriate.

Millenial students are fond of espousing this country's ascension to a state of post-racial relations. Certainly recent events involving fraternity chants and disputes over the interactions of white police officers and black suspects have elevated race back into the social justice consciousness.  But surely these issues must have been scrubbed from the interior of the halls of justice?  It is there that highly educated lawyers and judges interact with the single-minded ideals of the pursuit of justice.

Then how does this happen? The Idaho Appeals Court overturned the conviction of a black defendant on charges of sexual assault of a minor after the prosecutor quoted lyrics from the song "Dixie" in her closing argument.  Written as  minstrel song before the Civil War, "Dixie" became the unofficial anthem of the Confederate States during the war and has been associated ever since as a glorification of the society that enslaved African Americans.  According to the Idaho Statesman, Prosecutor Erica Kallin's address to the jury included the following:

" 'Oh I wish I was in the land of cotton. Good times not forgotten. Look away. Look away. Look away,' " Kallin said. "And isn't that really what you've kind of been asked to do? Look away from the two eyewitnesses. Look away from the two victims. Look away from the nurse and her medical opinion. Look away. Look away."

Click here to listen to an audio clip of this section of the closing argument.

The Appeals Court took judicial notice of the history and connotations of  "Dixie":

This Court does not require resort to articles or history books to recognize that “Dixie” was an anthem of the Confederacy, an ode to the Old South, which references with praise a time and place of the most pernicious racism. The prosecutor’s mention of the title, “Dixie,” as well as the specific lyrics recited by the prosecutor, referring to “the land of cotton,” expressly evoke that setting with all its racial overtones.

Because of the circumstances - a black defendant with charges of a sexual nature - the Appeals Court erred on the side of caution, setting the bar low for the defendant to show that the prosecutor's comments constituted reversible error, stating:

In this circumstance, both the constitutional obligation to provide criminal defendants a fundamentally fair trial and the interest of maintaining public confidence in the integrity of judicial proceedings weigh against imposing a stringent standard for a defendant’s demonstration that the error was harmful. Although the State’s case here was a strong one, it was not so compelling that no rational juror could have voted to acquit.

"Dixie" (in case you are not familiar with the song):

Miranda Basics

Not Innocent Enough

Nanci Griffith sings about the case resulting in the execution of of Philip Workman and the legal system's challenges.

The Role of Social Media in Law Enforcement

Former new England Patriot NFL player, Brian Holloway, was shocked when his college aged son told him that 300-400 high school and college aged kids were having a Labor Day weekend party in Holloway's country home in the Hudson valley, and tweeting pictures of the festivities.  Holloway got on-line and saw a picture of a drinking youth standing on top of the dining room table that he bought with his Super Bowl bonus.  Significant damage was done to the house that Holloway has owned since 1981. Police are investigating and the pictures posted on twitter and over 170 other tweets have already helped identify over 200 of the estimated 300+ partygoers.

Holloway, a motivational speaker, is trying to turn the event into a teachable moment.  He has created a website for identifying participants but also to invite them to get involved in community service - starting with coming over to clean up his house.

Holloway suggests:
 Suppose these students came together and created a voice of accountability and reconciliation that spread across the county with all the power and speed of social media?    It’s happened before?    That would definitely save lives.

Featured prominently among tweeted pictures of youths at the party is a girl wearing a UConn sweatshirt. Ouch!

Criminal Defendant is Entitled to Raise any Reasonable Defense; Including, "I am a Bad Person."

In limited circumstances, a criminal defendant may seek to avoid a conviction by introducing evidence of his or her good character.  The circumstances under which such evidence may be used are limited, but the defense is essentially, "I couldn't have committed that crime because everyone knows that I am a good person."  Sometimes, a defendant is able to avoid conviction, not by being a good person, but by being bad. "I couldn't have robbed that bank because while the bank was being robbed I was robbing a liquor store." But in an ironic twist on a character defense, a Texas teacher accused of improperly touching a seven year old African American student has raised the defense, "I couldn't have done that because I am a racist and don't like to touch Black people."  Will the prosecution now have to put witnesses on the stand to testify to the defendant's character for being tolerant?

Reality is truly stranger than fiction.

Criminal Complaint Against Boston Bombing Suspect

With the Boston Marathon bombings dominating the national news, its a good idea to keep an eye out for teaching resources.  The article linked here from Yahoo news includes access to the full criminal complaint filed by the FBI against Dzhokhar Tsarnaev. You don't often see documents in high profile criminal cases released for easy public access during the proceedings.

Boston Bombing Suspect Not Given Miranda Warnings

Students have most certainly been following the pursuit and capture of the Boston Marathon Bombers.  The media has reported that the lone suspect in custody will not be given the normally ubiquitous "Miranda Warnings."  Seizing the teachable moment, this may be a good opportunity to discuss the Miranda Warnings.

The warning is required to be given to persons "in custody" with relation to a criminal matter prior to that suspect's interrogation.  But,as described in the video below, the government here is claiming an exception. Students are sometimes confused about the effects of failing to give the warnings.  Students sometimes think that it is a technical defect that requires release of the defendant.  But the warning of a right to remain silent, only affect the evidentiary use of statements made by the defendant while in custody without having been properly warned of the right to remain silent and that were coerced form him or her.  If sufficient evidence independent of the defendant's statements and not derived from them exist, then prosecution to conviction may proceed.

Connecticut Courts Confront Eyewitness Testimony

The Connecticut Supreme Court recently ruled that expert testimony on the reliability of eye witness testimony is admissible to challenge the credibility of a witness.  Connecticut joins a growing number of jurisdictions reforming identification and testimony policies in consideration of the science of eyewitness identification.

This post illustrates one inherent problem in eyewitness perception.

The videos below illustrates another:

"Discovery is Very, Very Important."

Sometimes I feel that no matter what I say or how many times I say it, students can too easily tune me out.  That is why I sometimes assign videos that simply reinforce what I say in class.  Or, just play the videos in class to introduce, supplement or replace lecture on the topic.  In my experience, it is an opportunity to break the monotony of lecture; to have students look up from their laptops (I require that laptops be closed when a video is being shown) and increase the possibility of engagement.

The video below is not particularly interesting or exciting in and of itself, but it accomplishes the desired break in lecture - and the mountains are nice to look at.