Tag Archives: Supreme Court

DNA Paranoia

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The Supreme Court ruled 5-4 on Monday that police could collect DNA from people arrested but not yet convicted of serious crimes. The decision allows police to take a quick swab inside a suspect’s cheek when he’s arrested for a rape or a murder.

Twenty-six states already collect DNA from those arrested for felonies or other serious crimes and upload it into a national database run by the federal government. The purpose is, of course, to find matches with unsolved crimes.

The court found that swabbing for DNA was no different under the Fourth Amendment than taking fingerprints. Justice Antonin Scalia, in an unusual coalition with three of the liberal judges, wrote an angry dissent, using the all-purpose slippery-slope argument that the decision will lead to an increased use of DNA testing in violation of the Constitution’s protection against unreasonable searches.

It’s the same argument used against background checks for gun buyers at private sales. Pretty soon all gun owners could be registered, and then all guns could be confiscated. But the facts regarding swabbing for DNA don’t support that argument.

The portion of DNA that gets stored in law enforcement databases doesn’t reveal anything about one’s particular genetic traits or propensity for disease, despite what the conspiracy theorists assert. It’s simply an identifier, similar to fingerprinting —but much more accurate. Also, DNA is stored by barcode, not by name, with criminal penalties for anyone who violates the rules — just like any forensic evidence used in countless trials in our country.

Last year, Congress passed the Katie Sepich Enhanced DNA Collection Act, which President Obama signed in January. It creates a grants program to help states pay for the expanded system. Katie’s parents have led that effort through the organization DNA Saves. She was brutally raped and strangled at the age of 22 a decade ago. By the time her killer was identified through DNA evidence, he had committed other crimes.

Because DNA is so reliable, it has exonerated hundreds of innocent people and taken many murderers and rapists off the streets. It would have been a crime if the Supreme Court had ruled otherwise.

Videotaping Police

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In a ruling that has largely gone unnoticed, the U.S. Supreme Court rejected an appeal from the Cook County state’s attorney that criminalized the recording of police officers while on duty.

In rejecting the appeal, the high court leaves in place the lower court of appeals ruling that banned the enforcement of an Illinois anti-eavesdropping statute forbidding the recording of police officers in public. Under the statute, taping law enforcement officers was a felony in Illinois that carried up to 15 years in prison.

The state’s attorney’s office had argued that audio recording of the police in public was not protected by the First Amendment right to free speech. The ACLU had challenged the statute.

Most of us remember the infamous 1991 videotaping of LAPD officers beating Rodney King. The incident highlighted the racial tensions between law enforcement and minorities across the United States. Since then, videotaping and the posting of those videos on YouTube has become commonplace.

Still, police across the country don’t like to be recorded, and the reason is obvious. Take the example last November of the video of a campus officer at the University of California at Davis pepper-spraying student protesters. When the video went viral, the university was pressured to suspend the chief of police — who later resigned — and two officers.

Forty-eight states had previously passed laws making it legal to openly record on-duty police, as long as you didn’t physically interfere with their work. However, twelve states-California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington-require the consent of all parties to record a conversation.

So while the legal tide now appears to be turning in favor of the right to take video of the police, those with cameras and recording devices should understand that police in some parts of the country could still arrest citizens for doing just that.

Back To The Future

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Hundreds of thousands of voters could be disenfranchised this November because of blatant voter suppression legislation. Studies indicate that 18 percent of elderly voters, 25 percent of black voters, and 20 percent of Asian voters all lack ID and risk disenfranchisement by these new laws.

Yet, the Supreme Court is likely to consider efforts to scale back the landmark Voting Rights Act this term. The Act was first passed by Congress in 1965 and renewed four times since then, most recently 2006 when Congress voted to extend it for another 25 years.

Petitions from North Carolina and Alabama are challenging a key provision in the law requiring states with a history of discrimination at the polls to get federal permission before making any changes to election procedures, from redrawing congressional district boundaries to changing the locations of polling places.

As recently as 2009, the Court upheld the requirement, though Chief Justice Roberts’ majority opinion left open the possibility that the law could be struck down later, “In part due to the success of that legislation, we are now a very different nation.” Really?

A Brennan Center for Justice analysis of the ten states that have implemented voter ID laws found that the new requirements place substantial burdens on low incomer and minority voters who have limited access to offices that issue the proper ID. The Center found that fees required for the necessary documentation, such as birth certificates or passports, and difficulties scheduling appointments due to irregular hours, constitute a “poll tax.” Reuters reported that there have been more challenges to the Voting Rights Act in the past two years than in the previous forty-five.

Perhaps if Justice Roberts removed his blinders, he’d see a nation that is looking more like 1965 every day.

Jan Brewer’s World

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Watching Arizona Governor Jan Brewer declare “victory” yesterday after the Supreme Court tossed out three of the four provisions of the state’s “show me your papers” law, reminded me of the great line from Cheers when Frazier Crane said to Cliff Kleven, “What’s the color of the sky in your world, Cliff?”

The ruling rejected provisions that would have established being in the country illegally as a state crime, banned undocumented immigrants from applying for a job or soliciting work, and authorized police officers to arrest people if they have probable cause to believe the person committed any offense that would make them “removable” from the country.

As for the “show me your papers” provision the state successfully argued for, the Supreme Court ruled that the state can enforce that part of the statute, but only if doing so conforms to the Homeland Security Department’s priorities, including catching repeat violators and identifying and removing those who threaten public safety and national security. If federal agents decline to pick up illegal immigrants stopped by police, the state has no way to enforce the statute and must let them go, unless the immigrant has committed a crime.

“There is a basic uncertainty about what the law means and how it will be enforced,” Justice Kennedy’s opinion states in upholding the provision. “At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume it will be construed in a way that creates a conflict with federal law.” Basically, Justice Kennedy and the majority are saying that since the “papers please” provision hasn’t gone into effect, it’s not possible to tell if it’s going to cause problems––as it most certainly will.

In most states, law enforcement officials already have the discretion to ask about immigration status. The Arizona law makes that inquiry mandatory if the police have reason to suspect a person is an illegal immigrant. The key words here are, “have reason to suspect.” This is what Justice Kennedy was referencing and what civil rights groups will use to challenge the remaining provision. Though it may take years to reach the highest court, this provision will eventually be ruled unconstitutional as well.

Jan Brewer can claim victory, but, like Cliff Kleven, the world she inhabits only exists in her fantasies.

Justice Run Amok

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John Thompson

Imagine if you were found guilty of a robbery and murder that you did not commit, and then spent 14 years of your life on death row. Imagine if prosecutors deliberately suppressed evidence at your trial that would have exonerated you. What do you think it should cost the state and prosecution for intentionally imprisoning an innocent man?

Well, in the case of a Louisiana man named John Thompson, a jury awarded him $15 million. A civil court and two federal courts ruled that he had suffered a miscarriage of justice, and should be compensated for the years he’d spent in prison and the stress of being on death row. But in a truly bizarre 5-4 ruling this past week, the five conservative members of the Supreme Court overturned the ruling. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, orally read her dissenting opinion from the bench, strongly criticizing the decision.

Thompson was weeks away from being executed when an investigator found blood evidence on the robbery victim’s clothing that proved his innocence. Thompson was Type O, but the blood evidence was Type B. That critical evidence was purposely withheld from Thompson’s lawyer by a team of prosecutors in the New Orleans Parrish District Attorney’s Office, and ultimately led to his murder conviction.

In his civil rights lawsuit after his exoneration, Thompson claimed that former New Orleans District Attorney Harry Connick, Sr. (the father of Harry Connick Jr.) suppressed the exculpatory blood evidence, knowingly allowed prosecutors in his office to engage in repeated acts of misconduct, and failed to train his prosecutors about how to handle exculpatory evidence. Connick, in a truly convoluted bit of logic, claimed in his own testimony that training would make his job more difficult.

What makes this Supreme Court ruling all the more difficult to understand, is that the court was well aware of this culture of corruption in New Orleans, having previously vacated a capital murder conviction prosecuted by Connick’s office. In that 5-4 decision the court also found evidence of prosecutorial misconduct, as was found by the lower courts in Thompson’s case. Connick himself had previously been indicted by federal prosecutors for suppressing a lab report. It appears that the only difference in the two rulings is that Justice Alito replaced Justice O’Connor on the court.

It’s troubling enough when lawyers sworn to uphold the law deliberately suppress evidence in some warped, misguided attempt at justice. But now we have a majority on the Supreme Court that more often than not seems blinded by its ideology. There is a reason why Lady Justice is depicted as balancing the scales of truth and fairness while wearing a blindfold. I’m not sure that all members of the current court understand the personification.

Pre-Teen Killers

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In June 2006, two-year-old Emily Johnson of Fergus Falls, Minnesota, was sexually assaulted and murdered by the thirteen-year-old son of her daycare provider.

Yesterday, in the Minnesota House of Representatives, a bill called “Emily’s Law” began moving through the chamber. Sponsored by Republican Representative Torrey Westrom, and supported by Emily’s parents, the bill seeks to lower the age in which a juvenile could be tried as an adult in Minnesota from fourteen to ten. The bill would allow a judge to certify children as young as ten as adults if they are accused of murder, manslaughter, assault, aggravated robbery or sexual misconduct. Under current Minnesota law, minors between the ages of fourteen and seventeen can be certified as adults. Previous efforts to change the legal age have failed.

According to the U.S. Department of Justice’s most recent data, juveniles under the age of fifteen committed 27% of violent juvenile crimes in 2007-2008. Murder, non-negligent manslaughter, forcible rape, robbery, and aggravated assault are classified as violent crimes in their index.

Thirteen states already allow violent juvenile offenders under the age of fourteen to be certified as adults, including Kansas and Vermont, which allow juveniles as young as ten to be tried as adults. Colorado allows ten-year-olds to be certified as adults only if they are charged with murder.

In March 2005, the U.S. Supreme Court struck down the death penalty for juveniles, ruling that state laws authorizing capital punishment for those under the age of eighteen who commit murder violated the Eighth Amendment’s provision against cruel and unusual punishment and was therefore unconstitutional. Juveniles who commit violent crimes can now be sentenced to a maximum of life in prison. The ruling struck down laws in twenty-one states that had allowed the death penalty for juvenile offenders and took seventy-two prisoners off death row.

Representatives from Minnesota county attorneys, the public defender’s office, and corrections officials, all testified against the bill. They contend that very few juveniles younger than fourteen commit murder or other “unspeakable acts,” and no change in the law is necessary. Others argued that ten-year-olds do not have the capacity to “think and function as adults.” Representatives from the ACLU testified that the law would “impact racial disparities.”

Emily’s parents, Lynn and Travis Johnson, have testified in support of the legislation for five consecutive years. They believe the current system “has failed miserably,” and ask why fourteen is the “magical age.”

Obviously, it’s easy to sit on the sidelines and criticize Emily’s parents for supporting the age change, but what if you were Emily’s parents? What would you do? Should ten-year-olds be tried as adults in cases of murder and other extremely violent crimes? If not, at what age should a juvenile be certified as an adult?

The jury is out.

Unconstitutional Detention

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Abdullah al-Kidd was traveling to Saudi Arabia to work on a doctorate in Islamic studies in March 2003 when he was arrested at Dulles International Airport outside Washington, D.C. Suspected of being an al-Qaeda sympathizer, he was imprisoned for sixteen days as a material witness without being charged with a crime.

While in jail he was repeatedly striped searched, shackled for more than two weeks in a cell where lights were kept on 24/7, and interrogated without a lawyer present. After his release, his passport was seized, and he remained under restrictions for 14 months.

Al-Kidd was one of at least seventy people detained under then Attorney General John Ashcroft’s reinterpretation of the material witness law. The law is supposed to be used to hold anyone who knows about a crime or has observed one, but might flee before they could testify in court. Like most of those held by Ashcroft under this law, al-Kidd was never called to testify and was not charged with a crime. Also, the FBI persuaded a judge to issue a warrant for al-Kidd’s arrest by falsely claiming he had purchased a one-way, first class ticket, and failing to mention that he was an American citizen and had a wife and children in the U.S.

Born Lavoni T. Kidd in Kansas, and once a star running back for the University of Idaho, Kidd sued Ashcroft, saying his authorization of the detention made him personally liable for a violation of constitutional rights. The U.S. Court of Appeals for the Ninth Circuit ruled in Kidd’s favor. The Supreme Court agreed yesterday to hear the case.

What’s truly troubling about this case is not just that Ashcroft and the Bush administration knowingly violated the civil rights of a U.S. citizen under the Equal Protection clause of the 14th amendment, which gives police the right to jail ONLY persons for whom there is probable cause to believe they committed a crime.

No, what’s even more troubling is that the Obama administration has appealed the Ninth Circuit Court’s ruling on Ashcroft’s behalf, claiming that if the attorney general can be held liable for abusing his authority, it would “severely damage law enforcement.”

When President Obama wonders why his poll numbers have plummeted, he can look to this case. Not only has his administration refused to investigate or prosecute those individuals who engaged in torture under the Bush administration. Now, his administration wants to shield those who knowingly ordered the illegal arrests. If the Supreme Court overturns the ruling––a very likely scenario given the court’s current leanings, and the fact that Elena Kagan will have to recuse herself––it will set a dangerous precedent that will almost certainly lead to future abuse.

This abuse of power is certainly not what the framers of the Constitution had in mind, nor is it the kind of change that those who voted for Obama believe in.

Juvenile Justice

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Monday, in a 5-4 ruling, the Supreme Court limited the practice of locking up juveniles for life when they haven’t committed murder. The court ruled in the case of Terrance Graham, who was 17 when he was implicated in a series of armed robberies and subsequently sentenced to life in prison. As Justice Sonia Sotomayor noted, even the prosecutor did not recommend life without parole. Justice Anthony Kennedy, who five years ago voted to outlaw the death penalty for killers under 18, wrote the majority opinion.

The Justice Department reported that no 13-year-old has been given life without parole for non-homicides in a decade. The more than 2,000 juveniles who are currently serving life sentences for killing someone were not affected by the court’s ruling.

While life sentences with no chance of parole are unusual for juveniles who have been tried as adults and convicted of crimes other than killing, three-dozen states still allow for the possibility of life sentences. Vermont and Kansas provide statutory provisions for trying children as young as 10 years old in adult criminal court. 60% of juveniles in Florida’s prisons, like Graham, are locked up for life for crimes other than homicide. Pennsylvania has the highest total number of juvenile lifers. Only Alaska, Colorado, Kansas, New Mexico and Oregon prohibit sentencing minors to life without a chance for parole.

According to Frontline report, there has been little extensive research into the impact of laws making it easier to try kids as adults. But existing studies indicate that the get-tough approach has had little or no effect on the rate of juvenile crime. Two studies that examined whether trying juveniles as adults resulted in lowered juvenile crime rates found that there was no evidence to support that the laws had the intended effect.

Two additional large-scale studies indicated that juveniles who receive harsher penalties when tried as adults tended to reoffend sooner and more often than those treated in the juvenile system. A 1996 Florida study found that youth transferred to adult prisons had a nearly 30% higher recidivism rate than youth who stayed in the juvenile system. Given the hardcore clientele in most adult prisons, this statistic should come as no surprise.

In a second 7-2 ruling, the court upheld a federal law that allows for the indefinite imprisonment of inmates considered mentally ill and “sexually dangerous,” regardless of whether their sentences have been served. Under the current law, authorities must persuade a federal judge that continued imprisonment is necessary and also must try to transfer prisoners to state control.

The argument before the high court was not whether Graham was innocent or that he was seeking freedom now, but whether he deserved to someday make a case before the state parole board.

So what do you think? Should juveniles be locked up for life without parole for crimes other than murder? And should sex offenders who have served their sentence be released regardless of whether they’re deemed to be dangerous?

Juvenile Justice

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Last Thursday, the Minnesota State Supreme Court rejected the appeal of Lamonte Martin, who, along with 19 year-old Cornelius Jackson, was convicted of first-degree premeditated murder and sentenced to life without the possibility of release for shooting 19-year-old Christopher Lynch nearly a dozen times in May of 2006. The ruling upheld the convictions of both gang members who coldly executed Lynch as he begged for his life in a north Minneapolis alley.

This horrific act might have been just another in the long list of crimes associated with gang violence–crimes that occur daily in large cities across the country–except that Lamonte Martin was 17 at the time of the murder. His age was one of the issues cited on appeal.

A divided Minnesota court ruled that sentencing juveniles to life without the possibility of release does not violate the constitution’s ban on cruel or unusual punishment. Citing a 2005 ruling by the U.S. Supreme Court on a Missouri case involving a juvenile killer, which overturned the death sentence for the juvenile but upheld a sentence of life without release, Justice Christopher Dietzen concluded that, “When a juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties.”

While the prosecution hailed the verdict, Martin’s public defender argued that the ruling was another case of the justice system failing to properly distinguish between teenagers and adults when it comes to criminal responsibility and life sentences.

So did the Supreme Court make the right decision in sentencing Martin to life in prison? After all he was just days from his 18th birthday when he participated in Lynch’s brutal execution.

According to a 2005 report from Human Rights Watch, more than 2,225 juveniles across the country are serving life in prison without parole. Forty-two states permit judges and juries to sentence juveniles to life in prison without parole. Pennsylvania leads the nation in the number of juvenile lifers, with more than 330. Interestingly, Human Rights Watch found that 59% of the juveniles serving life-without-parole sentences nationally had no prior criminal convictions before being placed in prison for life.

So while some may argue that the decision handed down by Minnesota’s Supreme Court was cruel, it’s difficult to argue that it was unusual.

Forensic Fiction

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CSI, CSI Miami, and CSI New York are consistently three of the most watched shows on television. In a recent Nielsen ratings period, both CSI and CSI: Miami finished in the top ten. NCIS, The Mentalist and Criminal Minds also finished in the top ten. Clearly, viewers are fascinated with crime shows, particularly those dealing with forensic science and how it is used to conclusively solve crimes.

But last February, the National Academy of Sciences released a comprehensive report citing “serious problems” in the scientific evidence being presented every day in courtrooms around the country. The academy found “no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

And the Supreme Court recently ruled that crime lab reports may be introduced as evidence in court only if defense attorneys can cross-examine the persons who prepared them. The 5-4 decision involved a cocaine trafficking conviction that was based, in part, on evidence obtained from plastic bags found in a car in which the defendant was riding.

Defense attorneys wanted to interview the forensic analyst about how the evidence was collected and tested, but a Massachusetts court turned down their request. Later, the National Innocence Network argued that the testimony was vital because of errors in crime labs across the country.

I’ve written in the past about DNA evidence and how it has been used to free the wrongly convicted. But often DNA and other evidence such as hair, bite-mark comparisons, fingerprints, firearms, tool marks and shoe prints are used to convict individuals in real life, just as in those highly rated, fictional television crime shows.

Take the case of Philip Scott Cannon, a convicted murderer serving three life sentences in an Oregon prison for a 1998 triple homicide. A former Oregon State University researcher in the university’s Radiation Center testified that tests showed bullets found at the crime scene matched those found in Cannon’s garage. He told jurors there was only a 1 in 64 million chance of getting that match. Cannon was convicted primarily on bullet lead analysis. However, the FBI no longer uses bullet lead analysis and considers it unreliable. Cannon’s defense lawyers are challenging the accuracy of his conviction in a hearing scheduled for July 7th.

It’s anyone’s guess as to how many cases or convictions have resulted from flawed forensic science. The Innocence Project reported that approximately 50 percent of the wrongful convictions overturned with DNA involved invalidated or improper forensic science.

It’s unlikely CSI will offer episodes in which their forensic scientists make mistakes and convict an innocent individual. But viewers who believe that CSI shows are gospel better think again. It’s apparent that the criminal justice system is just beginning to face the fact that many of those sitting in prison today, may have been convicted using discredited forensic science.