Whitey Bulger Trial Begins Today: a Lesson in Real Life Mafia Crime and How Organized Crime Works (and Succeeds).

Whitey Bulger's Mugshot

Whitey Bulger goes on trial today and while I haven't been following this case before now, I'm suddenly fascinated with what is happening up in Massachusetts starting this week. So I'm going to be posting about the case, sharing what I'm learning with you, Dear Reader.  
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Today, the trial begins in a Boston federal courtroom for James (”Whitey”) Bulger, who was on the lam for 16 years before getting nabbed by the Federal Bureau of Investigation in Santa Monica, and it’s a big deal.

He’s facing charges of racketeering as well as 19 separate murder charges and his pretty blonde girlfriend, Catherine Greig, has been busted too (she already been convicted and sentenced to eight years incarceration for helping Whitey hide from the law).

Starting tomorrow, 675 people who make up the jury pool will begin the process of making their way to the Moakley Courthouse each morning as the judge and attorneys on both sides work to find 18 people out of that group to serve as the 12 jurors and 6 alternates in a trial that is sure to take months and months to complete.

Whitey Bulger Story is a Fascinating Story to Many:  Best Sellers, Big Movie 

This is a big deal for many people, in many ways. There’s already a couple of bestselling books detailing the life of this alleged mobster, and there’s also a big time movie in the works. (Johnny Depp was cast to play the role of Whitey, but he quit this week in an apparent salary dispute.)

The details of this federal trial are going to be a real-life education for many of us that heretofore learned about organized crime through Mario Puzo’s and Francis Ford Coppola’s Godfather series or perhaps watching the TV series, The Sopranos. 

 No fictionalized version of things this time. Follow this trial carefully and it may prove better than any award-winning fiction.  This is the real deal, and it's pretty darn spooky (and this from reading only the pleadings filed in the public record.)

Lessons in Real World Organized Crime: The Structure of the "Cosa Nostra"

Consider this from the live pleadings, the Fourth Superceding Indictment, where I for one learned lots of different descriptions for what the movies refer to as the “Cosa Nostra” in the movies and how the organization works, as well as the charges that have been brought against Whitey Bulger. 

 Summarizing from the first few pages of this indictment:

1. Since1965, both in Massachusetts along with other parts of the country, there has been a “secret criminal organization” which has several nicknames among its membership including:

• "La Cosa Nostra"
• "stu Cosa"
• "The Mafia"
• "This Thing of Ours," and
• “This Thing”.  (Who knew?  I never heard of "this thing" for the Mafia before, did you?)

2. The secret criminal organization is efficiently structured into groups called “Families" which operate all across the United States. The Families are overseen at a national level by a national “"commission" which is headquartered in New York City. The Commission’s membership are the leaders of each “Family” known as their "Bosses."

3. The indictment describes one of these Families as follows:

• “The Patriarca Family of La Cosa Nostra (the "Family"), which operated in the Districts of Massachusetts,on July 11, 1984 and who was then succeeded by his son, Raymond J. Patriarca, aka "Junior," until he was succeeded by the defendant FRANCIS P. SALEMME.“
• “The Patriarca Family existed and acted in conformity with the rules of La Cosa Nostra (LCN).“

4. Within the the Patriarca Family, the organizational chart involved the following:

1. The head man (or CEO as it were) is the "Boss."
2. His right hand man is the "Underboss."
3. His advisor and counselor is the Family’s "Consigliere."
4. Below the Underboss are a number of "Capo Regimes" or "Capos", men who are each in charge of a group of members who are their “crew.”
5. Within the crew, each member is a “made man” known as a “Soldier.”
6. Associates to the family are those who help the organization succeed and act with the Family members but these Associates are not officially “made” members of the Family.

5. The Family’s business operations were definitely for profit. According to the indictment, this Family gained revenue from a variety of illegal operations such as “…illegal gambling, extortion, loansharking, and narcotics distribution businesses and the collection of unlawful debts.”

6. In Massachusetts, there was a separate criminal organization known as "The Winter Hill Gang" and "South Boston." James “Whitey” Bulger was the Boss of the Winter Hill Gang.

7. The Winter Hill Gang acted with “...the purpose of controlling, supervising, financing, and otherwise participating in and deriving income from illegal activities, including illegal gambling, extortion, loansharking, and narcotics distribution businesses and the collection of unlawful debts.”

8. The Winter Hill Gang was competing with La Cosa Nostra in the New England area in these illegal marketplaces (gambling, extortion, drugs, etc.)for many years, viciously and successfully.  Things got ugly.

More in my next post.

Limitations, Really?? Ken Anderson Appeals Court of Inquiry's Contempt of Court Finding in Michael Morton Prosecutorial Misconduct Case

Alfred Hitchcock made movies about this:  the innocent man caught up in the system, no one believing his innocence.  John Grisham has made millions with the same scenario.

However, for Michael Morton it was the real thing: not only did Mr. Morton endure the murder of his young wife, the mother of his young son: he was arrested, charged, and convicted of that homicide by the State of Texas.

While his son became a man, Morton sat in a cell having been found guilty of the horrific beating death of his wife with a stick of wood.  No one believed his story that a stranger had killed her after Morton had left for work.  No one listened to the tiny boy explain that it wasn't his dad but a "monster" that hurt his mommy.

There's no air conditioning in Texas prisons, did you know that?  Think about spending 25 summers behind bars in a hot Texas summer where temperatures get well over 100 degrees: it's what Mr. Morton did until Houston civil trial lawyer John Railey almost single-handedly proved him to be an innocent man.

Now Michael Morton is free and dedicating his time to spreading the word about wrongful convictions and how easily these things can happen.

If there's not a movie being made of his story, then there should be.  Thing is, the story's not over.  

Enter the Black Hat.

Long ago, in that criminal courtroom where Morton heard the jury foreperson announce that "guilty" verdict, a man named Ken Anderson sat at the prosecution table.

Anderson went on to run for district judge, and served many years on the Williamson County bench overseeing trials of other citizens.  Until the Morton case came back to bite him.

Last week, Judge Louis Sturns - presiding over a special Court of Inquiry ordered by the Texas Supreme Court - issued his ruling in the case.  Judge Sturns found that Ken Anderson intentionally hid evidence during that murder trial long ago that would have kept Morton out of jail.

Judge Sturns found a prosecutor intentionally held back evidence and in doing so, allowed an innocent man to go to jail for the murder of his wife, presumably to spend the rest of his life behind bars.

Clearly, Ken Anderson didn't lose much sleep over the decisions he made back then; he campaigned for higher office and he's fought against these charges of misconduct.  No admissions here, no chagrin, no remorse.

And if I felt any compassion for Judge Anderson, and it's pretty hard to find that right now, it just went out the window as I read today about his appeal of Judge Louis Sturn's ruling.

Get this.  Anderson is arguing that the Court of Inquiry has essentially been an albeit interesting waste of time because none of it matters.  Anderson's argument?  Time bar.

That's right:  Ken Anderson is arguing that he's immune from the contempt order (and its accompanying jail time) because the statute of limitations shields him from any punishment.

|  Read the Court of Inquiry ruling here.  |

This shocks me.  I understand being terrified of going to jail as a longstanding prosecutor, that's not only humiliating, it's also very dangerous.  I get it.  I get fighting against that possibility.

However, for someone who has served as prosecutor and district judge for all these many years, I expect some sense of honor and integrity and respect for the system.

Limitations?  Really?  

Consider by comparison the actions of Travis County's District Attorney Rosemary Lehmberg, 63, after she was arrested for driving while intoxicated (DWI) earlier this month.

She wrote a letter to the County Attorney and "the Judge of any Court of Jurisdiction," stating in part (read the full letter here):

Please accept this as my Plea of Guilt to the Charge of Driving While Intoxicated, arising from my arrest on 4/12/13, for whatever level of offense is determined to be justified by the facts. 

I enter this unconditional Plea without request for delay, without legal argument by counsel, without any plea bargain, and without any request for leniency or consideration of any type.

I am guilty of DWI and of acting unreasonably and the fault is all my own. I am deeply sorry for my actions.  I apologize to the citizens of Travis County and specifically to the dedicated officers and employees who had to deal with my violation and any disrespectful conduct after my arrest.

Further, I agree to appear, without delay, to enter this plea and I accept whatever assessment of jail time is deemed appropriate by the sentencing Court.

In addition, I agree to waive any right to consideration of probation and waive any right of appeal of my guilt or my punishment, whatever it may be.

Austin's District Attorney did the right thing, in my opinion, and did so with dignity.  She has been sentenced to serve 45 days in the local hoosegow for driving drunk, and I expect she'll serve that term honorably, too.    Too bad that Ken Anderson isn't cut from the same cloth.

Texas Supreme Court Okays Divorce Forms: Get a Texas Divorce Without Paying a Lawyer

Interesting thing happened recently here in Texas:  the Texas Supreme Court issued an Order that approves certain forms for use by individuals wanting a divorce -- no need for lawyers.

That's right.  In certain situations, married folk here in the Lone Star State can split their matrimonial blanket without the need to spend one dime on attorneys' fees.  The Texas Supreme Court has provided the forms for them to use, it's so easy peasy.

You can read the Texas Supreme Court Order here.  There's a majority opinion as well as some dissenting arguments if you want to delve into the rationale behind this new twist in Texas law.

This does take money out of some lawyer pockets.  It's my understanding that the intent behind this development is to help couples who cannot otherwise afford a family law attorney to get a divorce and move on with their lives.

Will savvy and sneaky couples try and find ways to use these forms and avoid a lawyer, even if they can afford one (and maybe need to have a lawyer check things over)?  Time will tell. (Of course they will!)

The Family Law Bar isn't pleased.   Surprise.

DNA in the Amanda Knox Case: Experts Refute DNA Evidence Successfully

Wired has a great article today detailing the problems found in the DNA evidence presented by the prosecution in the Amanda Knox murder trial, written by John Timmer for Ars Technica and entitled, "Courtroom Science Drama: The Saga of Amanda Knox’s DNA."  

One of their experts is Dr. Lawrence Koblinsky of the John Jay College of Criminal Justice in New York.  You may have seen him on TV.

Point being that the DNA evidence used in the Knox trial not only served as a major tool for the prosecution to have Amanda Knox found guilty of murder, it was also a key factor used by her defense team on appeal to achieve her release.  Arguments post-conviction included not only that Italian law enforcement may have compromised the DNA evidence during their investigation, but also that DNA evidence found on the murder weapon (a knife) was miniscule and irrevocably tainted in the attempt to amplify that tiny amount into something bigger and therefore, easier to analyze. 

My prediction: the Amanda Knox case will serve to publicize the weaknesses in DNA evidence and more criminal defense attorneys - both at trial and on appeal - not only will spend more time and effort challenging DNA evidence, the likelihood is increasing that their efforts will be worthwhile. 

dna, evidence, trial, technology, crime

DNA Evidence Can Be Faked - So Why Do We Continue to Consider DNA Infallible?

DNA is easier to fake than fingerprints at a crime scene, according to scientific experts, and this is something that's been public knowledge for several years now.  Read the 2009 article in the New York Times, for example; written by Andrew Pollack, entitled "DNA Evidence Can Be Fabricated, Scientists Show," it's got lots of details.  Or go peruse the research paper written by Dr. Daniel Frumkin in Genetics, a source mentioned by Pollack in his coverage. 

Why Don't We Know That DNA Evidence Is Not 100% Trustworthy?

No one talks about this much, and I wonder how many people really know that we cannot trust DNA just because they do it on TV.  Heck, in one Law and Order: Special Victims Unit episode, even the TV cops found out that the DNA in their case had been faked.  (If you're interested in watching, that was episode 9 of season 11, entitled "Perverted." Watch it here.)

Faking someone's DNA is easy to do, and it doesn't take all that much skill or education.  Apparently, all an evildoer would need is the saliva sample of one person - which they could get off a tossed coffee cup or drinking straw or fork or spoon (well, you get the idea), or from a hair sample, again something that could be pulled from the trash.  Then, through a process called "whole genome amplification," the evildoer can create fake DNA samples of that person which evildoers, being what they are - evil doing - could use to cause all sorts of mayhem. 

But that's not the whole story.  It's even easier that this for the sinister scientist who wants to fake someone's DNA.  If they don't have that tossed coffee cup or hair from a comb, no problem.  DNA can also be faked if they can get access to the person's DNA profile, stored somewhere in a computer database.  They can cook up some fake DNA using the info on the database as their recipe.

So, why aren't we being told about this?  We all need to know that DNA isn't infallible, that we shouldn't automatically trust DNA evidence. 

Why?  Well, I'm just as concerned about overzealous prosecutors as I am about outlaws taking advantage of this opportunity.  Seems to me that it is only by greater public awareness that this can happen (and that questionable DNA evidence can be tested to see if it has been faked) that an evildoer trying to plant DNA evidence for sinister purposes can be thwarted. 

Troy Davis and Judge Moore: What Was the Evidence in this Case?

Troy Davis was executed by the State of Georgia, despite all the controversy surrounding whether or not this man was innocent of killing a police officer, long ago, in the parking lot of a fast food restaurant.  Since the execution, I've read all sorts of stuff on the web about this case - from Ann Coulter to Alec Baldwin - and it's left me wondering: okay, what WAS the evidence in this case?

Earlier, I posted what I understood to be accurate - that the majority of the eyewitnesses had recanted and that there was no physical evidence presented by the prosecution at the trial where Troy Davis was convicted.  Was this true?  (No.)

Also, I wrote that the United States Supreme Court had done something very unusual when they sent the case down for an evidentiary hearing before a district court judge (Judge William Moore of the United States District Court for the Southern District of Georgia, Savannah Division).  As I recall, this was the first time that the High Court had done this in around 50 years.  The federal trial court judge would serve as a fact-finder, grading the papers of that Georgia jury. 

Interesting - a single federal judge given the opportunity to overturn a state jury.  Think about that, it's a big deal. 

So, after pondering all this, I went to the very long opinion that Judge Moore issued in that unusual hearing, and I have posted it at Google Docs for anyone who wants to read it (it's almost 150 pages, and it appears in two parts):

Judge Moore's Opinion re Troy Davis Part One;
Judge Moore's Opinion re Troy Davis Part Two.

The evidence that was considered in the Troy Davis case is presented at the beginning of this opinion.  After that, an analysis of that evidence under a "clear and convincing" standard is given; a standard not as stringent as that of "beyond a reasonable doubt," as discussed on page 80 of the Pattern Jury Instructions of the Eleventh Circuit.  (Judge Moore spends significant word count explaining the burden of proof he believes applies in his determinations.)

Bottom line, it is this opinion that I think everyone should be reading before they consider the words of political commentators - Judge Moore obviously wrote this opinion with the expectation that many eyes would be reading and reviewing his work. 

• Was there physical evidence?  He discusses shell casings found at the scene of the crime.
• Why wasn't he swayed by the eyewitnesses who recanted?  He goes into detail, witness by witness, regarding what they said then and now.

Did the State of Georgia execute an innocent man?  I don't know.  I do know that I learned something from this opinion and I wish I had read it, in all its details, long ago instead of reading a lot of the other stuff out there on this case. 

Read the Juror Questionaire in Dr. Conrad Murray Criminal Trial Re Death of Michael Jackson

Looks like we've got another case where there may be so much media coverage that the danger of a trial by media exists. Celebrity sites are following this one, and misinformation is being provided (for example, there is no charge in this criminal trial of the civil tort of gross negligence). 

Whether or not Dr. Conrad Murray committed a crime in the death of Michael Jackson is going to trial over in California this month, and right now the parties and the judge are involved in the jury selection process.

Like the Casey Anthony trial earlier this year, state prosecutors will have the burden of establishing beyond a reasonable doubt; here, the key issue is whether or not the doctor is criminally responsible for the death of Michael Jackson.   Dr. Murray is charged under California state law with involuntary manslaughter and he could face 4 years in prison and the loss of his medical license if convicted.  (Read the complaint in full online here.) 

For more information on the crime of "involuntary manslaughter" as it will be given to the jury in the formal jury instructions, go here for details and also consider the following:

However, evidence of imperfect self-defense may support a finding of involuntary manslaughter, where the evidence demonstrates the absence of (as opposed to the negation of) the elements of malice. (People v. Blakeley (2000) 23 Cal.4th 82, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675] [discussing dissenting opinion of Mosk, J.].) In such a situation, the court should also instruct the jury in involuntary manslaughter.

Given the outcome of the Anthony case, and the scrutiny that those jurors still undergo today both in the international media and from the American public at large, it's no surprise that the California case has focused upon who jury selection -- however, this questionnaire is considered by many to be unusually piercing in its investigation into the individuals that will take on the role of juror.  Don't expect to see this kind of thing the next time that you're called for jury duty. 

Who would have created this questionnaire?  It would be approved by the judge after conferring with the prosecution and defense.  They, in turn, will probably have conferred with their jury selection consultants on the issues to be addressed in the questioning.   It's 30 pages long and filled with lots and lots of interesting queries (read it here): 

Click on Image for Full Text

Full Text of Balanced Budget Amendment Bill - S.J.Res. 10 With Latest Updates: House Votes Next Week

Below is the full text of the bill proposing that the federal government have a balanced budget.  Maybe you, like me, think it's a good idea to read this thing. 

What is a balanced budget amendment? 

Balanced budget amendments are not new, a federal version has been debated for years -- and all but three of the states have their own version of a balanced budget requirement, imposed either by constitution or by statute (the three that do not are Wyoming, North Dakota, and Alaska according to the Austin American Statesman). 

In sum, these balanced budget laws (or amendments) state that the government cannot spend more than it takes in; in this proposal, each year the President would have to provide a proposed budget to Congress (who has the purse-strings) that demonstrated no plan for the feds to spend more than the federal income. 

The 2011 Balanced Budget Amendment - Details


For more information on the current proposed bill for a Balanced Budget Amendment to the U.S. Constitution, read through the links provided here by Thomas.gov. 

Note that this proposal not only seeks a Balanced Budget but it also establishes caps on spending at 18% Gross Domestic Product (GDP) and it fights against an increase in federal taxes by requiring an overwhelming Congressional vote approving any tax hike.

Shown below is the version of the bill that was accurate as of the date of this post (you can download a pdf from the Government Printing Office here). 

The House of Representatives will vote on this bill during the week of July 18, 2011.  If the House approves this bill, then the next step will be to send the proposed amendment to the 50 states for their ratification: 


 _____________________________________________  112th CONGRESS 1st Session S. J. RES. 10
Proposing an amendment to the Constitution of the United States relative to balancing the budget.
IN THE SENATE OF THE UNITED STATES

March 31, 2011

Mr. HATCH (for himself, Mr. LEE, Mr. CORNYN, Mr. KYL, Mr. MCCONNELL, Mr. TOOMEY, Ms. SNOWE, Mr. RISCH, Mr. RUBIO, Mr. DEMINT, Mr. PAUL, Mr. VITTER, Mr. ENZI, Mr. KIRK, Mr. THUNE, Mr. ALEXANDER, Mr. INHOFE, Mr. CRAPO, Mr. BURR, Mr. BARRASSO, Mr. COBURN, Mr. MORAN, Mr. LUGAR, Mrs. HUTCHISON, Mr. ISAKSON, Mr. BROWN of Massachusetts, Mr.

TV Shows That Take From Pending Cases: Harry's Law and the Case of the Big Firm Who Failed the Death Row Inmate

I don't know if you caught any of the new David E. Kelley television series, Harry's Law, but it's online for free if you want to catch at least the season finale, "Last Dance."   I liked the show - even though admittedly it probably jumps the shark at least once an episode on the political soapbox platform stuff - and I hope it returns next year.  And that's not just because Kathy Bates is the lead, not some big-haired younger actress with stillettos, a smart mouth, and a love interest.  I like Castle, too. 

Anywho.  The episode became a bit more fascinating than merely entertaining to me when I began to realize that the storyline was a twist on an actual miscarriage of justice that Terry Lenamon and I have been monitoring over at the Death Penalty Blog. 

It's really true that a mother calling to check the appellate clerk's docket was the one to inform the fancy schmancy law firm that there had been a ruling.  After the deadline to appeal that ruling had passed, of course.  What to do?  The man faced execution. 

That's right: unless some lawyer or judge pulled a rabbit out of a hat, a man would die because of a law firm mailroom messup.  Talk about form over substance.

In the television show, the inmate is played by the same actor who portrayed Michael Oher in The Blind Side.  Quinton Aaron.  He's good, I hope he gets more roles.

In real life, the inmate is Mr. Cory Maples. The law firm that messed up is the highly esteemed Sullivan & Cromwell.

What really and truly happened is this (quoting from the DP Blog): 

... two New York associates from swanky Sullivan & Cromwell walked into an Alabama trial court, post-conviction (pro hac vices granted), and filed a motion under Rule 32 of the Alabama Rules of Criminal Procedure. Thereafter, the two associates left the law firm, and when the court clerk sent out notices that the Rule 32 motion had been denied (tick tick tick of the appellate clock), Sullivan & Cromwell returned the notices: "return to sender."

Of importance, the Rule 32 Motion was denied in part because of (1) failure to state a claim and (2) asserting arguments that were to be made in direct appeal. Also of importance, their signature blocks never gave the firm's name, just the individual attorneys -- and yet, the law firm kept the representation after the two lawyers left its employ, learning of the missed appellate deadlines only after their client's mother called to check on status.

We'll have to wait until next season to see what Harry's law firm does to save their fictional Death Row inmate - who had a 30 day ticker before his scheduled execution date.

For Cory Maples, we must wait on the United States Supreme Court.  They took the case last month; however, their review is limited to only one argument (no. 2) in his petition for writ of certiorari. Here's that question:

Whether the Eleventh Circuit properly held - in conflict with the decisions of this Court and other courts - that there was no "cause" to excuse any procedural default where petitioner was blameless for the default, the State's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.

Now, we wait on the vote.

The docket for the Supreme Court's decision about Cory Maples can be followed here.

The schedule for Harry's Law?  Right now, I don't know that the show has been renewed.  Apparently, NBC won't decide until mid-May, after its advertisers get together and vote or something (story here). 

Trial by Media: Michael Jackson Doctor, Conrad Murray, Will Be Tried On TV - Should He Be? Do the Pros Outweigh the Cons?

TMZ is reporting today that the trial of Dr. Conrad Murray in California, where he is facing manslaughter charges in the death of Michael Jackson, will be televised.

Now, I recognize that if there's gonna be any place in the country where putting stuff on the screen seems like no big deal, it's Los Angeles. And I understand that there's a lot of profit here by doing so -- big audience, big advertising dollars, I get it.

I still don't know that this is a good idea. First of all, the job of the defense is to air a lot of dirty laundry. Yes, Michael Jackson will be tried in this case -- it's a strategy honed by my mentor Racehorse Haynes long ago, in the Cullen Davis murder trial.

No smart criminal defense attorney is going to forego introducing as much evidence as possible that puts Jackson in a bad light in defense of Dr. Murray's actions that day. It's gonna happen.  (There's already scuttlebutt about a Michael Jackson suicide defense.)

Not fair to his kids. Not fair to his mom. Won't matter. We're going to learn things that will hurt them in this trial, and it's gonna go all over the world instantaneously in this televised trial.

Meanwhile, there are all those conspiracy theories out there (yes, there are Michael Jackson sightings now) as well as the potential of new ones if this trial is not put out there for public scrutiny. People may debate the trial in its aftermath, but they'll have the evidence presented and that's a different scenario than the omission of cameras and worldwide suspicions of evildoing in the courtroom. This is a plus to televising this thing.

However, I'm not a fan of televised trials. Perhaps in the early days, when the process was put onto our screens in sort of a CSpan approach -- but now, it's become so much more akin to reality TV.

Trial by media is a real concern, as well. Can Dr. Murray get a fair trial? I don't know, but if he's convicted there is that possible appellate argument.

Do the pros outweigh the cons? I don't think so in this case. In my opinion, Dr. Murray's trials should not be televised.

Oregon Supreme Court Reverses $100 Million Punitive Award Against Philip Morris Based on US Supreme Court Decision Re Punitive Limits

The $100 million punitive damage award against Philip Morris got reversed by the Oregon Supreme Court last week, with the state's high court returning the case back to the trial court for yet another consideration of how much the tobacco company should pay the family of Michelle Schwartz in punitives for her lung cancer death. (The opinion is available online in pdf format.)

The trial court judge already reduced the jury's initial $120,000,000 punitive award to $100 million; now, who knows where it will end up.

Why this second reduction by the Oregon Supreme Court?

Apparently, the tobacco company's defense argument - that jury instructions failed to stop the jurors from awarding punitives against Philip Morris for cancer deaths other than Michelle Schwartz's - prevailed upon appeal.

This, even though the jury's verdict was totally valid under the law that existed at the time that the verdict was reached and the judgment was signed by the trial judge.

What happened?

It wasn't a case of reevaluation of the court's charge: the defense's proposed jury instructions didn't get approved by the trial court judge, either. This decision is a direct result and reaction to the United States Supreme Court's decision that due process requires limitation on punitive damages.

Problem is, the US Supreme Court didn't give any clear help to lower courts in how they are to determine the due process parameters on punitive damage awards. As Oregon Justice Martha Walters explains in last week's opinion, the United States Supreme Court "... has thrust upon state courts the role of determining whether a jury award of punitive damages exceeds the outer limits that substantive due process allows."

Here's what the U.S. Supreme Court opined in State Farm Mut. Automobile Ins. Co. v. Campbell, 538 US 408, 422, 423 (2003):

"[a] defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties' hypothetical claims against a defendant under the guise of the reprehensibility analysis[.]"

Would the same result happen if this case had been filed in another state?

Gotta wonder if another state supreme court, say Texas, would see things the same way as Oregon in the application of this warning from the Supremes. And, will this result simply mean that Plaintiff's lawyers are going to be much more thoughtful about where they file suit against huge, monolithic corporations like Philip Morris?

Nothing like certainty in litigation.

Texas Death Row's Hank Skinner and the US Supreme Court - What About Post Conviction DNA Testing Under 42 USC 1983?

On Monday, the U.S. Supreme Court granted the Petition for Writ of Certiorari filed by Texas Death Row Inmate Hank Skinner.  It's a case to watch, because it means that the High Court will hear Skinner's argument he has a right to pursue a civil claim, not a criminal one, regarding his continuing assertion that he is innocent of the crime for which he has been sentenced to death.

Savvy Appellate Counsel file Civil Rights Claim

What Hank Skinner's savvy defense attorneys have done is file a civil rights claim which argues that his constitutional rights have been violated because the State of Texas didn't allow him to test evidence that was not tested at trial.   He's not arguing this as part of his criminal case (writ of habeas corpus); he's arguing it as a civil matter. 

The Fifth Circuit Court of Appeals already denied him, standing on past precedent and opining that any violations of his constitutional rights to (1) due process and (2) protection against cruel and unusual punishment based upon "the defendant district attorney’s refusal to allow him access to biological evidence" for purposes of forensic DNA testing need to be addressed in a petition for habeas corpus, not a petition for writ of certioriari. 

What Hank Skinner wants is to test evidence for the absence of his DNA long after the jury trial is over

Skinner wants to test things that were left outside the courtroom during the jury trial that found him guilty and sentenced him to die.  Professing his innocence of the crime, Hank Skinner wants the chance to take things in possession of the State of Texas, send them to a laboratory, and have the lab results show his DNA isn't on the stuff and therefore, he wasn't the killer.   (If you want to read the background facts of the case, read them in Skinner's own words in a Q and A he answers at the Texas Death Penalty Blog.)

What About the Evidence?

It's obvious from his arguments that not all the evidence found at the scene of the crime was tested for Hank Skinner's DNA.  And, of course it's true that DNA testing has exonerated many who have been wrongfully accused in this country (often, thanks to the efforts of The Innocence Project). 

Interestingly, the same day that the Supreme Court granted writ on the Skinner case, a Wisconsin County Judge freed William Avery, 38, after DNA evidence showed that Mr. Avery did not kill a Milwaukee prostitute 12 years ago.  He had served 5 years of a 40 year sentence. 

It's also true that failure to properly test the state's evidence has led to the execution of innocent men.  Texas executed Cameron Todd Willingham in 2004; today, there are few that doubt that Mr. Willingham was innocent of the arson deaths of his children, and that faulty testing of the evidence (and failure of the system) was to blame.

What Happened at the Trial?

However, what I'm wondering is what happened during the criminal trial?  Was this a defense attorney strategy back then -- to not dig too deep in the State's evidence bag, for fear that it would only reveal more evidence that could be used against the defendant? 

Why didn't the defense counsel at the trial do this testing?  Was it error? Or was it a conscious decision made in what was considered the best interests of their client at the time?

And, here's why I'm asking - gamesmanship and the jury trial. 

1.  In future cases, what if criminal defense attorneys make strategic decisions NOT to go into all the things that came from the criminal investigation.  Is the Skinner case going to mean that years down the road, a whole new series of appeals will begin, based upon a constitutional need to go back and check that stuff then?  Assuming so, then how can we protect against gamesmanship while allowing for legitimate claims?

2.  What does this do to the respect of the jury that is inherent in our system?  Already, we have seen mediation and other forms of ADR (Alternative Dispute Resolution) cast aside the constitutionally recognized sanctity of a trial by a jury of our peers in civil actions.  What impact will Skinner have upon the criminal jury system over the years, if the U.S. Supreme Court agrees with Mr. Skinner's arguments?

Byrd and Melanie Billings Murder in Florida: When Do the Florida Sunshine Laws Kick In? How Does Billings Case Impact the Casey Anthony Defense?

A Florida Grand Jury has just indicted the seven men whose mugshots we've already come to recognize as the "Ninja Warriors" arrested for the murder of Byrd and Melanie Billings. Each of the men -- including the minor, Rakeem Chavez Florence (16) -- have been formally charged with two counts of first degree murder and one count of home-invasion robbery. With this, the death penalty is apparently still on the table.

(The other defendants are Wayne Thomas Coldiron (41); Leonard Patrick Gonzalez, Jr. (35); Leonard Patrick Gonzalez, Sr. (56); Donald Ray Stallworth (28); Gary Lamont Sumner (30); Fredrick Lee Thornton (19).) It's alleged that the younger Gonzalez was the sole shooter in the case.

Wisconsin Allows Cops to Put GPS on Your Car and Track You: Even if You're Not a Suspect, and Without a Warrant

Hopefully, something will be done about this, but don't expect the Wisconsin judicial system to help. The state's appellate court has approved the use of GPS tracking systems by law enforcement, where the cops place GPS trackers on cars -- without a warrant, and without anyone being labeled a suspect.

In Wisconsin, apparently, the cops can track anyone, anytime - just because they want to do so. Yes, you read that right. In Wisconsin, right now, any motor vehicle on the road could have a GPS tracker on it - legally - even if the owner doesn't know it, and even if the owner is not a suspect for any crime.

What about the right to privacy? What about due process prohibitions against illegal search and seizure?

Wisconsin appeals court passes the buck to the State Legislature

The Wisconsin 4th Court of Appeals couldn't help -- they heard the case, and decided it wasn't a violation of the 4th Amendment (which prohibits illegal search and seizure). Their idea was that as long as the car went along in public places, where the cops could follow it, then there wasn't a problem - the GPS wasn't telling the cops anything more than they'd know anyway from physical surveillance.

Except that the car in question did go into private places. And, except that the placement of a devise on someone's personal property without their permission - for the purpose of watching them - is wrong, without due process.

Now, to be fair, the Wisconsin court did voice some concerns here. They wanted us to know that they didn't like what they were doing. But instead of doing something themselves, they suggested that the Wisconsin Legislature do something.

Is this it? Let's hope not.

Of course, there's a lot of brouhaha about this decision. The ACLU is arguing that this violates privacy laws, for one thing. Maybe we haven't heard the last of this. Hopefully, that Wisconsin appellate court decision can be reviewed by the state's high court (I haven't researched the scheme of things in Wisconsin's judicial system to know what court grades the papers of the 4th Court of Appeals in Madison, Wisconsin.) And, there's always federal court, you know....

This law getting this far is troubling.

Meanwhile, this is a valid law on the books. And, I think we should all be worried just because it's made it this far.

It doesn't seem like rocket science to me that it is just plain wrong for a cop to sneak up to a car and put a GPS tracker on it, just because he wants to do so. And to do so without a warrant -- which is in essence, a judge double-checking and approving the cop's desire to invade a person's right to privacy because of a valid legal interest. Plus, to do so without the person being labeled as a suspect of a crime.

What made these cops think this was okay? What made these courts let this scoot on by?

And, here in Texas -- wouldn't we just love this? What with all our gunrunning, human trafficking, and drug distribution problems down here?

Heck, why don't we just sell cars with power steering, anti-lock brakes, and a GPS tracker for the cops built right it? Oh, yeah, we do.

If you have a navigation system, like OnStar or TomTom in your car, you're already trackable now. Same goes for your smartphones. Of course, right now, the cops need a warrant to gain access to that personal information - they've got to have paperwork to tote over to the OnStar folks or the TomTom folks, to gain access to that information. But they can do it, technologically. And, with this Wisconsin precedent, it's really just a small step from needing a warrant to ... well, NOT.

Scary stuff, isn't it?

A Unique Solution to the Overcrowded Prison Problem

In South Texas, a woman weighing 1000 pounds (that's not a typo) has been arrested for capital murder. Where's she going to be incarcerated? The officials have no answer for that -- they say they'd have to remove a wall to her bedroom to get her out of there, so right now the judge has released her on a personal recognizance bond.

The mind reels at the due process considerations here. Where will the hearings be held? The trial? If she's found guilty, where will she be placed? Permanent house arrest? Looks like she's already done that to herself.

Still, I can already hear it: let's force feed other prisoners ....