Innocence Project Blog on latest issue with forensic experts

Forensic Practitioners' Credentials Come Under Fire

Through a joint project of PBS’ Frontline, ProPublica and the UC Berkeley School of Journalism, a Berkeley graduate student in journalism discovered that she was able to receive certification as a forensic consultant from the American College of Forensic Examiners International (ACFEI) after taking a single, open-book, multiple-choice exam online.

Several former ACFEI employees call the group a mill designed to churn out and sell as many certificates as possible. They say applicants receive cursory, if any, background checks and that virtually everyone passes the group’s certification exams as long as their payments clear.

  Some forensic professionals say the organization’s willingness to hand out credentials diminishes the integrity of the field.

The joint project, which investigates several shortcomings of the forensic science system, follows a landmark 2009 National Academy of Sciences report that challenged the scientific basis and rigor of forensics. The report’s chief recommendation, that a national entity to establish and enforce higher standards in the forensic sciences, has not yet been implemented.
 
Read the full article “No Forensic Background? No Problem”
 
Read additional coverage, including an interview with the former co-chair of the National Academy of Sciences, Harry T. Edwards who discusses the need for a national forensic science entity.
 
For more about the National Academy of Sciences report.

North Carolina Racial Justice Act Decision

Yesterday, North Carolina Superior Court Judge Greg Weeks rendered a decision in the first case challenging a death sentence under the State’s Racial Justice Act. This comes twenty-five years after the United States Supreme Court decided in McCleskey v. Kemp that statistical proof alone is insufficient to state an equal protection violation when discriminatory impact in capital punishment is shown. In the North Carolina case Marcus Robinson was convicted and sentenced to death for the slaying of seventeen-year old Erik Tornblom. Evidence produced at the two-week hearing in the case showed that minorities, particularly African-Americans, were excluded from death-qualified juries at a much higher rate than white venire members. The study, conducted by two law professors at Michigan State University, showed that the statistical likelihood that the strikes were exercised for non-discriminatory purposes was less than one in ten trillion.

North Carolina’s Racial Justice Act, passed in 2009, is similar to Kentucky’s which was passed in 1998. North Carolina, however, permits post-conviction relief for prisoners while Kentucky defendants must raise the claim pre-trial in addition to a number of other structural differences. While Kentucky was the first and only state in the nation to have a Racial Justice Act until 2009 so far there have been no successful claims in the Commonwealth. This is despite statistical proof that African-Americans, particularly those accused of killing a white person, are more likely to face death in the Commonwealth.

Download Marcus Robinson RJA Order

Download Motion For Appropriate Relief Pursuant to the Racial Justice Act

Contributed by Greg Coulson

KY COA March 30th -Bell- Statement by Juvenile in School

Commonwealth v. Bell; and T.C.
11-CA-562, Rendered March 30, 2012; To be published

The Commonwealth appealed a denial of a writ of prohibition seeking to overturn the suppression of a thirteen-year old boy’s statement in a first degree sodomy case in Fayette County District Court. The Court of Appeals affirmed the suppression, finding that even though the detectives did not deprive T.C. of sleep, food, had Mirandized T.C., and had used a calm conversational tone, these factors do not provide the same assurance of voluntariness in a thirteen year old as it does for an adult. 

The Court of Appeals focused on the fact that T.C. was interrogated at school, stating, “The fact is a school is where compliance with adult authority is required and where such compliance is compelled almost exclusively by the force of authority. Like it or not, that is the definition of coercion.”  The Court found that the Detective’s questioning in the school setting made it reasonable to believe that T.C. felt he had to say “something, whether true or not.” Further, it was unreasonable that T.C. would believe he had the right to say nothing and get up and leave the interrogation.

The Court noted, “T.C., alone, was ordered by school officials into a room, facing adult authority figures with considerable power, who also feigned superior knowledge (“I know what happened [and your cousin] has not lied to me about anything”), and who repeatedly demanded answers that he, if he was to be an obedient child, would have to provide.  How could T.C. not perceive such a situation as subjectively coercive?”

Note that the Court of Appeals did not cite the recent U.S. Supreme Court case J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011), in making its decision.  The J.D.B. decision provides additional support for suppressing a juvenile’s statement when it is made in a school setting since it discusses the viewpoint of a child interrogated at school and requires consideration of a defendant’s age when determining if the child was in custody under Miranda.

Contributed by Robert Yang

McCleskey v. Kemp: 25 Years Later

A consortium of organizations has created the website, McCleskey v. Kemp: 25 Years Later.

Twenty-five years ago this April 22, the Supreme Court decision in McCleskey v. Kemp allowed our criminal justice system to relegate Blacks and Latinos to second-class citizen status simply because of their race or ethnicity.

In McCleskey, a majority of the court ruled that it was "inevitable" that Blacks would be treated worse by the criminal justice system and that the Constitution is only violated where it is proven that a specific person in a specific case intentionally discriminates against the defendant because of his or her race.

There exists today significant racial disparities at many critical stages of the criminal justice, resulting in Blacks and Latinos being treated differently than whites in comparable circumstances.

Listen to the oral argument and read the decision (via LDF, which argued the case before the Supreme Court.)

Join the #McCleskey conversation on Twitter (kicked off by the ACLU Capital Punishment Project)

Hear Michelle Alexander describing the "new Jim Crow"

Watch Bryan Stevenson share some hard truths about America's justice system

The Supreme Court has never reconsidered McCleskey despite the fact that this decision has yielded enormous negative consequences that extend far beyond the confines of courthouses and jail cells. By sanctioning racial disproportionality in the administration of criminal justice, McCleskey has caused significant racial disparities in access to meaningful employment, to public housing, to higher education, and to voting.

Justice Lewis Powell, the author of McCleskey, later admitted to a biographer that he was wrong in that decision and that he belatedly found capital punishment to be unworkable.

By condoning criminal justice laws and policies which disproportionately impact communities of color, the Supreme Court has endorsed a system of justice that fosters racism by ignoring it.

Hat tip to Standdown Texas Project

KY SC March 22 - Smith- Speedy Trial

JOHNNY SMITH V. COMMONWEALTH,

2011-SC-144-MR, March 22, 2012, Affirming in Part, Reversing and Remanding in part. 

First-degree robbery, unauthorized use of a motor vehicle and PFO II - 30 years.  Opinion contains an extensive speedy trial analysis.  Even though the Commonwealth had all the evidence in hand, and waited eight months for no good reason prior to requesting DNA testing, the trial court properly granted Commonwealth’s motion for a continuance in order to perform DNA testing.  Smith’s speedy trial rights were not violated –long story short--due to his own actions in failing to show up for multiple court appearances.  Although he failed to show because he was incarcerated elsewhere, he should have informed his attorney, who could have attempted to secure his presence.  Eyewitness testimony was sufficient to defeat a motion for directed verdict. Trial court’s imposition of court costs remanded for findings, as set out in Maynes v. Commonwealth, Case No. 2010-SC-000681-DG. Language of the restitution order was specific and was enforceable.

PRACTICE TIP:  If you have a client detained elsewhere, make efforts to obtain his presence at court appearances, or prepare to forfeit any speedy trial claim.

Contributed by Susan Balliet

KY SC March 22 - Callahan- Corpus Delicti

GARRETT CALLAHAN V. COMMONWEALTH, 2009-SC-406, Not to be Published, Reversing and Remanding.

TRIAL TIP: 
Object to “corpus delicti” prior bad acts evidence.

   
Concurring in this unpublished opinion, Justices Venters, Schroder, and Scott question the Court’s approval of 404(b) evidence introduced simply to prove that the alleged act occurred.  Trial attorneys are encouraged to object to such evidence in order to bring this issue back up to the Court for new consideration:

VENTERS, J., CONCURRING:

The majority opinion, with which I fully concur, concludes that the prior bad act alleged here is not similar enough to the crime for which Callahan was being tried to qualify for admission under KRE 404(b). We therefore avoid the need to revisit recent opinions, such as Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010) and Clark v.Commonwealth, 223 S.W.3d 90 (Ky. 2007) that have allowed the introduction of prior object bad acts, relevant not to prove a specific issue of fact such as the identity or the mental state of the alleged perpetrator, but solely to prove the "corpus delicti" — that is, to show that the alleged crime actually happened.

Upon reflection, it seems that in those and other recent cases, we may have allowed the 404(b) exceptions to completely swallow the 404(b) rule. In practice, the only way that prior bd acts "prove the corpus delicti" is drawn from the natural assumption that the crime must have occurred as the victim claims because the defendant has a history of doing that sort of thing.

This is simply propensity evidence by another name — exactly what KRE 404 and its common law antecedent have prohibited for generations. We have never offered a sound rationale for what I see as a departure from that venerable principle of law. Moreover, our decisions have not given clear guidance on matters such as the degree of proof needed to reliably establish the occurrence of the prior bad acts, or how to gauge the degree of similarity between the crimes on trial and the alleged prior acts.

We have also neglected serious discussion of the role of the KRE 403 balancing test. I would welcome a re-evaluation of this troublesome area of law when the issue is squarely presented in a subsequent case or upon consideration of the matter as part of this Court's rule-making authority.

Schroder and Scott, JJ., join.

Contrbuted by Susan Balliet

KY COA April 6th - Land- Failure to Appear/Escape

Land v. Commonwealth,
2010-CA-1840, Rendered on March 30, 2012, To Be Published 

Land pleaded guilty to a class D felony and was given an alternative sentence, part of which was ordered to be served on weekends.  Mr. Land failed to appear one weekend, and was subsequently charged with escape in the second degree.  He entered a conditional guilty plea to the escape charge, reserving the right to appeal whether the failure to appear for service of a weekend sentence constituted an escape in the second degree.

The Court of Appeals held that it did.  The Court found the failure to report for weekends as required by the alternative sentence fit within the statutory definition of escape because it was a failure to return to custody or detention following a temporary leave granted for a specific purpose or a limited period.  The Court found that the escape met the requirements for escape in the second degree because Land had been convicted of a class D felony prior to his escape.

Contributed by Robert Yang

KY SC March 22 - Knox- Hammer Clause

MICHAEL KNOX V. COMMONWEALTH, 2010-SC-816-MR, March 22, 2012, Reversing and Remanding for a new sentencing.  Hammer Clause.

While the Court did not bar hammer clauses from plea agreements, it held that a judge’s commitment to impose a hammer clause without proper consideration of the other relevant factors --including the contents of the presentence report required by RCr 11.02 and KRS 532.050, as well as the nature and circumstances of the specific crimes to which the defendant pled guilty, and the history, character, and condition of the defendant as required by KRS 533.110, is an abuse of discretion.

PRACTICE TIP:  Knox's counsel specifically preserved this issue for appeal by requesting that alternatives to the hammer clause sentence be considered, and the trial court declined.  The Court noted, however, that a trial court's failure to comply with the sentencing prerequisites of KRS 533.010(1) and (2) is reviewable on appeal without preservation because even defendants who have pled guilty "have the right to be sentenced after due consideration of all applicable law." See Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994).

 Contributed by Susan Balliet

KY COA March 30th - Ayers- Faretta

Ayers v. Commonwealth – 2010-CA-590, Rendered March 30, 2012; To Be Published

Ayers was convicted on five counts of failure to file a tax return.  The Court of Appeals held that the trial court’s failure to conduct a Faretta inquiry rendered the conviction invalid, warranting a new trial.

Ayers was an attorney licensed to practice in Kentucky.  He was indicted on five counts of failing to file a Kentucky tax return from 2002 to 2006.  From the nearly two-year period between indictment and trial, Ayers represented himself.  Filing motions that were ruled upon by the trial court, but without a formal Faretta hearing.  A trial followed, and Ayers was convicted.

Ayers argued that it was improper for the trial court to let him proceed to trial pro se without a Faretta hearing.   Even though he was an attorney, the Court of Appeals noted that attorneys are protected under Faretta as well.  Further, even though Ayers did practice criminal law, harmless error analysis did not apply - Faretta violations result in “structural error and will merit appellate correction.”

Contributed by Robert Yang

KY COA March 30th - Robbins- Possible Ineffective assistance of counsel for failing to investigate and giving misadvice leading to a guilty plea

Robbins v. Commonwealth – 2009-CA-2178 & 2010-CA-1969, Ordered Published March 30, 2012

Robbins pleaded guilty of wanton abuse or neglect of an adult; wanton exploitation of an adult over $300; theft by unlawful taking over $300; and persistent felony offender, second degree.  He filed two RCr 11.42 motions to set aside his plea, conviction, and sentence.  The trial court denied both motions without an evidentiary hearing.  The Court of Appeals held that the trial court abused its discretion by denying the first RCr 11.42 motion without an evidentiary hearing.  The second motion was properly dismissed as being successive.

Robbins was charged on June 25, 2007 of taking over $114,000 from his mother’s bank account and letting her medical condition worsen without seeking medical care for her.  He entered a Alford plea on September 11, 2007 and was sentenced on November 15, 2007.

Two years later, Robbins filed his RCr 11.42 motions alleging ineffective assistance of trial counsel.  The Court of Appeals faulted the trial court’s finding that no evidentiary hearing was necessary because the record was “apparent” that trial counsel conducted a proper investigation on behalf of Robbins.

First, Robbins complained that he pleaded on the advice of counsel, but was never given the opportunity to review the evidence against him.  In fact, the Commonwealth had not provided any of the required discovery (approximately 1,600 pages) when Robbins entered his guilty plea.  Without reviewing the information in the discovery, it was impossible for Robbins to evaluate the soundness of counsel’s advice.  The Court of Appeals held that without an evidentiary hearing, it is not possible to evaluate the effectiveness of trial counsel’s representation.

Second, the Court of Appeals was concerned that the Commonwealth’s theory of guilt
was based on a standard not authorized by the protection of adults statute (KRS 209.020) for “Abuse, ” “Neglect,” and “Exploitation.”  Apparently, the victim, Robbins’ mother, suffered a hereditary condition, that causes her legs to swell and blister.  And the police officer’s observation of the mother’s legs formed the basis of the abuse/neglect charges, despite the mother informing medical personnel that her condition was not caused by her son.  The Court of Appeals held there was no duty for a healthcare surrogate to force a person to seek medical treatment unless that person lacked the capacity to make health-care choices.  Since trial counsel never spoke with the mother, there is an issue of fact whether trial counsel reasonably advised Robbins to accept the guilty plea.

Third, the exploitation and theft charges were based on allegations that Robbins used his mother’s assets for his own benefit, even though the mother consented to Robbins’ withdrawals from her bank account.  The trial court should have considered the mother’s consent as being decisive in the presentation of a successful defense.

The trial court’s failure to order an evidentiary hearing is problematic for two reasons.  First, if counsel’s advice was based on a failure to fully investigate the evidence supporting the charges and the defenses to the charges, then counsel’s advice was deficient. Furthermore, given the questionable factual and legal support for the charges, there is a reasonable implication that Robbins would not have pleaded guilty but for counsel’s deficient advice.  Accordingly, an evidentiary hearing is warranted in this case.

Trial practice tip:  When defending Neglect/Exploitation cases, it is a proper and winning defense if the victim (if mentally competent) refuses medical treatment or consents to the defendant’s withdraw of victim’s money.

Contributed by Robert Yang

KY SC March 22 - Goldsmith - Probation Revocation

William Dustin Goldsmith v. Com.,

2012 WL 975717 (Ky. 2012) March 22, 2012.  Probation revocation. 

Goldsmith pled guilty to three Class D felonies in both Carlisle and Hickman Counties accepting a 15-year sentence in each county and was sentenced to probation. After he violated probation, the trial court ran the two counties' sentences consecutive for a total of 30 years. Since the final judgments were silent as to whether the two counties' sentences were to run consecutively, and the trial court lost jurisdiction 10 days after entry of final judgment under CR 59, the trial court committed plain error because it “exercise[ed] discretion it did not have.”  

The trial court decided to run the sentences consecutively when Goldsmith criticized a religious drug treatment program he had been sent to as a requirement of probation, was “exceedingly disrespectful to the court” when he cursed several times, and the court could not perceive another remedy for Goldsmith’s behavior.  But while “the trial judge has broad discretion and alternative means in handling outbursts in the courtroom…imposing an illegal sentence is not one of them.” Because Goldsmith’s sentence had been fixed and his probation revoked, contempt proceedings were the option.  Case remanded with instructions to run the two 15-year sentences concurrent for a total of 15 years.

Contributed by Susan Balliet

KY SC March 22 - Driver- Prior Convictions. Prosecutorial Misconduct

Steven Driver v. Commonwealth, 2012 WL 975711 (Ky. 2012) decided March 22, 2012 (2009-SC-000639-DG).  Reversing and Remanding
 
Mr. Driver was convicted of First Degree Assault following a fight with his second wife. There are three important points to take from this case.

First, the Kentucky Supreme Court reversed his conviction holding that reversible error occurred when the prosecutor introduced his prior convictions involving his first wife.

Second, the Court ruled that the prior convictions against his first wife could become relevant if he raised an Extreme Emotional Disturbance defense that the fight began because he learned his second wife was having an affair.

Third, the Court ruled that the prosecutor should not have argued in closing that the jury should convict him to protect his children.

Note - the issues was preserved through the excellent work of Murray Directing Attorney Robin Irwin.

Contributed by Susan Balliet

KY SC March 22 - Jackson - Juvenile Code. Jurisdiction. Preservation.

James Jackson v. Com., 2012 WL 975708, (Ky., 2012) decided on March 22, 2012.
Juvenile Code.  Jurisdiction.  Preservation.

The district court certified Jackson as a youthful offender and transferred him to the circuit court, where he entered a guilty plea and was sentenced as an adult. He collaterally attacked his conviction on the grounds that the transfer was improper and argued that the circuit court never acquired jurisdiction over him or his case. In addition to failure of the indictment to charge a public offense, issues that survive a guilty plea include competency to plead guilty, certain types of sentencing issues, and whether the trial court had general subject-matter jurisdiction. "Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the proceedings." RCr 8.18.

Because the district court's transfer order was legally sufficient on its face, and no other jurisdictional defects appear in the record, this Court concludes that the transfer was proper and the circuit court had jurisdiction.  But since the Commonwealth did not seek discretionary review of the Court of Appeals' decision to remand for a determination of voluntariness of the guilty plea, the remand for that determination stands.

Contributed by Susan Balliet

Lawyer erred by not calling psychologist, Missouri appellate court holds

from Forensic Psychologist Blog

180-year sentence overturned over lack of mental health testimony

A trial counsel’s failure to call a psychologist to testify at the sentencing hearing of a Missouri man with borderline intelligence constitutes reversible error, an appellate court has ruled.

The court upheld a trial court decision that the attorney's performance was deficient, and that the failure to present psychological evidence may have prejudiced the defendant.

A jury deliberated for just a little over an hour at the sentencing hearing of 24-year-old Skylor Radmer before recommending a prison sentence of 180 years. Earlier, the jury had convicted him of two counts of statutory sodomy for molesting his 5-year-old niece.

In upholding the lower-court ruling reversing the sentence, the Court of Appeals for the Western District of Missouri said that psychological testimony about Radmer's borderline intelligence might have resulted in a different outcome.

Radmer's attorney, Bert Godding, knew about Radmer's intellectual handicap because he had represented him in a prior case in which his comprehension of a police Miranda warning was at issue. In that case, he retained psychologist Bill Geis, who testified at an evidentiary hearing that Radmer was functioning at the borderline intellectual level, with an IQ score of 75.

At a hearing on the ineffective assistance claim, Dr. Geis testified that Radmer's low intelligence might have been relevant to explaining his sex offending as a product of poor judgment rather than pedophilia.

The trial attorney also testified at the hearing, admitting that he had no strategic reason for not calling a mental health expert to testify at the sentencing phase of the trial: "I don't believe that I necessarily had a reason not to or to do that," he testified. "I don't know why I didn't call someone like that."

The appellate court rejected the prosecution’s argument that the jury would have found Dr. Geis biased because he had worked for the public defender in the past. Geis is a research professor at the University of Missouri-Kansas City.

The defense lawyer's "failure to call Dr. Geis or a similar expert during the sentencing phase fell below an objective standard of reasonableness," the appellate court unanimously held.