By Bert | May 14, 2019 | The Open File Blog:

Wildly inappropriate behavior from the office of the prosecutor in Delaware’s largest city generated fascinating discussion among the justices in a recent Delaware Supreme Court opinion. The decision concerns the court’s review of a lower court’s dismissal of Jacquez Robinson’s first-degree murder indictment on the basis of law enforcement misconduct. Specifically, New Castle County prosecutors and their investigators raided the defendant’s jail cell and took his confidential files and notes, which included trial strategy, without notifying the court or his lawyer. In a close call, the five justices of the state’s highest court split three-to-two, with the majority deciding to reverse the lower court’s ruling. Although they declined to dismiss the indictment, the majority reprimanded the prosecutors, disqualified them from further participation in the case, ordered the office to destroy all trial work-product, and required the office to notify the trial court of its opinion if another instance of this misconduct was found. The dissenting justices would have gone even further, finding that the State’s “guileful and inept” response to being caught showed that the problem of misconduct demonstrated by their handling of Mr. Robinson’s documents is not merely an isolated incident.

 

Michigan, like so many other states, has fines that are at times quite steep. There are people who just don’t bother to pay fines, but there are others who simply can’t pay the fine.

From Howard Bashman’s How Appealing blog, “Judge: Stop unfairly suspending Michigan driver’s licenses”:

Back in December 2017, Niraj Warikoo of The Detroit Free Press had an article headlined “A federal judge has issued a preliminary injunction halting the suspension of driver’s licenses in Michigan for people too poor to pay off court debts from traffic tickets, a decision that could impact about 100,000 residents.” The majority on a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued this decision reversing the district court’s preliminary injunction. Circuit Judge Bernice Bouie Donald once again ends her dissenting opinion with “I dissent!”

Sometimes we take for granted that forensic science is reliable when it isn’t. And because we legitimately fear drunk driving, the volume of cases can lead judges to be a bit cynical about challenges to the local police methodology. Just because there is a challenge does not necessarily make it true. The device that has been approved  in New Jersey illustrates the challenges courts face.

Mark Denbeaux, Nathan W. Kahl, Nicholas Snow, Richard Eschle, Marissa Litwin, Keith Oliver and Robert DiPisa (Seton Hall University, School of Law, Seton Hall University, Seton Hall University, Seton Hall Law School – Center for Policy & Research, Seton Hall University – Center for Policy & Research, Seton Hall University – Center for Policy & Research and Seton Hall University – Center for Policy & Research) have posted The Untestable Drunk Driving Test on SSRN. Here is the abstract:

The intersection of law and science has a long and tortuous history, but a new chapter is being written in New Jersey with the state’s use of the Alcotest 7110 MK III-C for prosecuting drunk driving traffic offenses. As the name implies, this is a device which purports to test levels of intoxication by measuring breath alcohol levels in order to determine blood alcohol concentration. The Alcotest is a proprietary device purchased by the State of New Jersey for use by law enforcement under a contract with the manufacturer that prohibits the State from subjecting the device to “reverse engineering” testing. Although the Alcotest was approved for use by the New Jersey Supreme Court after a proceeding that explored its reliability, serious scientific and legal questions remain, largely because of the manufacturer’s refusal to sell a device for independent testing or permit the State to provide its devices for such assessment. Given this limitation, any conclusions about the Alcotest are necessarily tentative. Nevertheless, as detailed in this Report, there are serious reasons to doubt the accuracy and reliability of the test, especially the manufacturer’s claims of the superiority of its product because, unlike other devices, the Alcotest employs two independent measures of breath alcohol. In reality, the two measures are highly interdependent. In addition, there are other reasons to question the validity of the test as an accurate measure of intoxication.
The Alcotest machine and the process by which it has been adopted raise the following novel issues:

• In New Jersey, the Alcotest device has been adopted to the exclusion of all other devices. The Alcotest is now the only breath alcohol analyzer of record in the state.

• The Alcotest device is now ‘immunized’ from challenge and from outside testing, and doubly so:

• By New Jersey’s contract with Draeger, which allows Draeger to prohibit any entity other than the state from purchasing the Alcotest, and

• By the decision in State v. Chun, which acknowledges Draeger’s intellectual property rights to the source code of the Alcotest, thus preventing any outside entity from determining how the machine works.

• Measurement devices like the Alcotest are inherently inexact, not because of oversights or poor design but because any measurement carries with it measurement errors. Sources of error for previous machines were reasonably well investigated, documented, and understood. The Alcotest, while new and theoretically better than previous designs, is also subject to measurement error, but because of the Alcotest’s immunity to challenge, those sources of error are currently not subject to investigation by scientists, let alone litigants.

The point — that a consequential and relatively ubiquitous scientific instrument is unavailable for scientific purposes, under any circumstances — is more than a theoretical issue.

The hallmark of the scientific process is testing and peer review. As matters now stand, it is impossible to test and review the Alcotest in the courts, and Dr. Snow’s experiences show that it is further exempted from testing and review in the scientific community.

This report investigates the process by which the Alcotest was adopted; the extent to which it is immune from testing; the reason that such immunization is dangerous in light of the science of breathalyzers in general and the Alcotest in particular; and, finally, the legal consequences of admission of evidence that cannot be tested either in general or in this particular case. Because science lies at the core of the legal issues surrounding the use of the Alcotest, Part Two of this report describes the science behind blood alcohol tests in general and the Alcotest in particular. Part Three considers the circumstances and the Special Master’s decision of State v. Chun. Finally, the report’s conclusion addresses the legal consequences of the aforementioned testing prohibitions upon the use of the device in litigation

From ProPublica, via the NACDL news scan:

In his report, Vorder Bruegge wrote that John Henry Stroman and the robber had similar “overall shape of the face, nose, mouth, chin, and ears.” But Vorder Bruegge stopped short of declaring a match, saying the video and pictures were too low resolution for that.

Nevertheless, prosecutors said in court filings that if Vorder Bruegge took the stand, he would testify that “the photograph is of sufficient resolution to definitively state that the robber is John Henry Stroman.” The judge said the testimony would be admitted if the case went to trial. A week later, Stroman accepted a plea deal.

It wasn’t the first time, nor the last, Vorder Bruegge’s lab results said one thing and the courts were told something different. Court records and FBI Lab files show statements by prosecutors or Vorder Bruegge veered from his original conclusions in at least three cases.

From Minnesota Public Radio:

This week, a federal appeals court addressed the right to treatment for an inmate who suffers from opioid addiction, a move that legal advocates say could have wide repercussions.

The United States Court of Appeals for the First Circuit in Boston ruled that a rural Maine jail must provide Brenda Smith with medication for her opioid use disorder. One of her attorneys, Emma Bond, a staff attorney with the ACLU of Maine, says the new ruling has the potential to create a “big signal” for jails across the country and combat the social barriers preventing incarcerated people from receiving treatment.

“This is the first federal appeals court in the country to address the right to treatment for opioid addiction in jail,” says Bond. “It represents a huge step forward in the fight against the opioid crisis and for our client who will get her medication in jail.”

Brenda Smith, a resident of Madawaska, Maine, was sentenced in 2018 to 40 days in the Aroostook County Jail for theft at an area Walmart, according to statements in an earlier court decision. Smith currently receives a twice-daily dose of buprenorphine — more commonly known by the brand name Suboxone. This medication helps people with opioid addiction control cravings and maintain recovery. Smith has been in stable recovery for five years on the medication.

Jail officials told her lawyer they were going to interrupt that treatment during her sentence, according to this week’s ruling, forcing her to undergo withdrawal in jail. They argued the drug is contraband in the jail and could hinder rehabilitation and become a source of trafficking. Smith and the ACLU of Maine challenged that position in court, arguing that withholding treatment would violate the Americans with Disabilities Act and the 8^th Amendment of the constitution.

Susan Friedman of the Legal Action Council in New York has worked on the intersection of the Americans with Disabilities Act and access to medication-assisted treatment for the better part of a decade and she agrees with Bonds’ assessment. Friedman says not only is the ruling binding for courts and jails in the First Circuit, courts around the country will pay attention to this affirmation that denying inmates in jail medication-assisted treatment for opioid use disorder violates the ADA – and is illegal.

Under the ADA, it’s illegal to discriminate on the basis of disability, and this includes people who have gone through or are going through drug rehabilitation.

“That sends a really important message to jails and prisons around the country as well as to policy makers who are grappling with these issues,” said Friedman.

Friedman said some jails and prisons will likely start trying to provide access to medications for opioid use disorder to avoid being the subject of a similar lawsuit or because administrators recognize it’s the right thing to do.

Research has shown that providing medication treatment in jail and prison can prevent relapse and reduce risk of overdose upon release. A number of jails and prisons around the country are starting to offer medication treatment with buprenorphine or methadone — but many refuse to, citing concerns that the drugs will be diverted and abused.

Smith’s won her Maine-based case this week when a three-judge appellate panel upheld an earlier ruling by federal judge Nancy Torresen in U.S. district court for Maine.

Last month, Torresen ordered the jail “to provide the Plaintiff with her prescribed buprenorphine during her sentence at the Aroostook County Jail in whatever way the Defendants deem most appropriate in light of the Aroostook County Jail’s security needs.

Celebrating 30 Years of Drug Courts

Sandra G. Mayson and Megan T. Stevenson (University of Georgia School of Law and George Mason University – Antonin Scalia Law School, Faculty) have posted Misdemeanors by the Numbers (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue. But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research. This Article represents the most substantial empirical analysis of misdemeanor case processing to date. Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing.

The resulting portrait reveals a system that disproportionately impacts poor people and people of color. Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention even at relatively low amounts, and imposed court costs upon conviction. There were substantial racial disparities in case-filing rates across locales and offense categories. The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted. The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and serve different functions, from place to place. It thus presents a major challenge to efforts to describe and theorize the contemporary landscape of misdemeanor justice. At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor, or of misdemeanor criminal justice. As appreciation for the significance of lowlevel law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world.

From Governing Magazine, By Jesse Paul:

Gov. Jared Polis’ signed a bill Thursday preventing people accused of many low-level offenses — such as petty, traffic or most municipal charges — from being jailed because they can’t pay their cash bail.

That also means people currently locked up in Colorado on those types of charges, who are unable to pay their bail, must be released. At least one county believes there are several people being held in their facility who might be eligible.

“If you are thinking about putting someone in jail right now for a low-level offense and putting  cash bail on them for $100 or $200 or $300, you can’t do it anymore,” said state Rep. Leslie Herod, a Denver Democrat.

Some of those minor offenses could include: having an open container, trespassing and/or shoplifting less than $50 worth of goods. There are exceptions carved out for people accused of a traffic offense involving death or injury, operating a vehicle after circumventing a device meant to check a driver’s blood-alcohol level, or eluding a police officer.

View Full Story From Colorado Sun

From The Marshall Project and The Atlantic:  Can a witness wear a veil on the stand?

There is a defendant’s right to a public trial and to confront the witnesses against him. There is every person’s right to freely exercise her religion. In some instances, those rights clash. What happens then?

OK the pun is silly. An appeals court has overturned a previous ruling that allowed for tires to be chalked as part of parking enforcement.

In rendering its April 22 opinion, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit reversed a previous U.S. District Court ruling that granted the dismissal of a lawsuit against the city of Saginaw.

“Because we chalk this practice up to a regulatory exercise, rather than a community-caretaking function, we reverse,” reads a portion of the 10-page opinion stating the practice violated the Fourth Amendment.

In April 2017, attorneys Philip L. Ellison and Matthew E. Gronda filed a lawsuit on behalf of Alison P. Taylor in U.S. District Court in Bay City. Named as defendants in the suit are the city of Saginaw and Tabitha Hoskins, employed as a city parking official.

The suit states that since 2014, Hoskins has issued Taylor 14 parking tickets — some for $15, others for $30 — for allegedly exceeding the 2-hour limit on a parking spot in Old Town Saginaw, where she works. Hoskins was able to tell that Taylor’s vehicles had surpassed the time limit by marking her tires with chalk, the suit alleges.

The judges’ opinion states that “chalking is a search for Fourth Amendment purposes,” as well as disagreeing with the district court that the warrantless search of Taylor’s vehicle was reasonable because of a lesser expectation of privacy with automobiles.