In R. v. Bornyk, 2013 BCSC 1927, October 22, 2013, the accused was charged with the offence of break and entry.  The sole evidence against the accused was “a single fingerprint found inside the home.”

At the trial, Corporal Wolbeck, a Royal Canadian Mounted Police forensic identification specialist, was qualified as an expert in the identification, comparison and individualization of fingerprints.

During his testimony, Corporal Wolbeck indicated that:

A. It’s interesting to note that any fingerprint individualization that’s made, whether it be at the Canadian Police College or throughout my apprenticeship, if there is any errors made on a fingerprint, it’s immediate withdrawal or removal from the program.  There’s no errors allowed in fingerprint identification.  That continues today.  There is [sic] no errors permitted in fingerprint identification.

Q. So then does that mean, then, Corporal, that every time you have looked at like an unknown print, or a found print, and compared it to the known print, if you’ve made an identification that’s incorrect, then you are no longer in the position that you’re in, you’re not longer a forensic identification expert?

A. That’s correct.  We’re removed from the program immediately.

Q. You’ve never made an error?

A. I’ve never made an error.

Corporal Wolbeck then provided the following opinion:

Based on my training, knowledge and experience, I formed the opinion that the latent impression marked R1, located on the side of the “Living Dead Dolls” box, and the inked impression of the right ring finger, as recorded on the fingerprint form bearing the name of Timothy Dale BORNYK, were deposited by the same person.

In assessing and weighing this opinion, the trial judge considered the following material:

• Rt. Hon. Sir Anthony Campbell, “The Fingerprint Inquiry Report,” Scotland, 14 December 2011, APS Group Scotland, Edinburgh;
• National Research Council of the National Academies, “Strengthening Forensic Science in the United States, A Path Forward,” The National Academies Press, Washington, D.C., 2009;
• Expert Working Group on Human Factors in Latent Print Analysis.  Latent Print Examination and Human Factors:  Improving the Practice through a Systems Approach.  U.S. Department of Commerce, National Institute of Standards and Technology, Washington, D.C., 2012;
• S.A. Cole and A. Roberts, “Certainty, Individualisation and the Subjective Nature of Expert Fingerprint Evidence,” [2012] Crim L.R. Issue 11;
• The National Research Council’s study “Strengthening Forensic Science in the United States, A Path Forward”;
• Heidi Eldrige, “Meeting the Fingerprint Admissibility Challenge in a Post-NAS Environment,” Journal of Forensic Identification, 61(5), 2011 at 430;
• Glenn Langenburg, “A Performance Study of the ACE V Process:  A Pilot Study to Measure the Accuracy, Precision, Reproducibility, Repeatability, and Biasability of Conclusions Resulting from the ACE V Process,” Journal of Forensic Identification, 59(2), 2009 at 219; and
• Michelle Reznicek, Robin M. Ruth and Dawn M. Schilens, “ACE V and the Scientific Method,” Journal of Forensic Identification, 60(1), 2010 at 87.

The trial judge indicated that there were a “number of troubling aspects arise from Corporal Wolbeck’s report and testimony” and concluded as follows:

While the usable portion of the latent fingerprint and the known fingerprint are quite similar, I have more than a reasonable doubt that there is a match of the latent fingerprint to the known fingerprint.  Accordingly, I acquit the accused.

Maggie Clark at Stateline has this notable new article (and this amazing associated resource) reviewing all the diverse ways states deal with the Supreme Court’s Miller ruling. The piece is headlined “After Supreme Court Ruling, States Act on Juvenile Sentences,” and here are excerpts:

Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory life sentences for offenders under 18 are cruel and unusual punishment, and therefore unconstitutional. In the wake of that decision, a federal court this month ruled that … more than 300 other Michigan juvenile lifers are entitled to a parole hearing.

Michigan is one of at least 11 states that have revisited their sentencing laws in response to the Supreme Court decision (see Stateline chart). Generally, juvenile killers in those states will be eligible for a parole hearing after serving a mandatory minimum sentence of about 25 years.

Little did we know that the genesis of the legal justification for much of the surveillance that Edward Snowden and others complained of was a sobriety checkpoint:

Sobriety checkpoints and mandatory drug testing of student athletes and railroad workers are among the legal precedents justifying the U.S. government’s now-defunct and court-approved secret email metadata dragnet surveillance program, according to documents the authorities released late Monday.

The thousands of pages of records the President Barack Obama administration unveiled include the nation’s first opinion from a secret tribunal authorizing the government to obtain data from the “to,” “from,” “cc,” and “bcc” fields of all emails “to thwart terrorist attacks.”

“This concern clearly involves national security interests beyond the normal need for law enforcement and is at least as compelling as other governmental interests that have been held to justify searches in the absence of individualized suspicion,” Judge Colleen Kollar-Kotelly, then the presiding judge of the Foreign Intelligence Surveillance Court, wrote in an opinion believed dated in 2004.

For the full story see:  WIRED

Many cities have seized upon the strategy of seeking civil injunctions as a way of curbing gang activity.

Predictably, this strategy is quite controversial.  The Salt Lake Tribune contains an article headlined “Utah Supreme Court throws out Ogden gang injunction.  Supreme Court says county can’t ban Trece members from associating.”

The Utah case involved an injunction of 315 to 500 members of the gang who were prohibited from gathering within a 25-square-mile “safety zone.”

The ban included “driving, standing, sitting, walking, gathering or appearing together with any known member of Ogden Trece anywhere in public view or anyplace accessible to the public,” with the exception of school or church situations, according to court documents.

You can access the ruling of the Supreme Court of Utah at this link.

But, the news is that appellate courts are not looking favorably on civil injunctions.

The Associated Press reports on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued:

The 9th U.S Circuit Court of Appeals said the 2009 injunction granted by a state court against alleged members or associates of the Orange Varrio Cypress gang was extraordinarily broad, impinging on constitutional liberties and everyday activities, and that there was a “considerable” risk of error in identifying alleged gang members.

The practice is not confined to federal court:  a prosecutor calls a press conference often flanked by law enforcement to announce the charges against the accused.  Surely this is a legitimate news story but when it goes too far there is certainly a chance that jury pools will be harder to find.

Decades ago a former member of the Cabinet said after his acquittal “who will give me back my reputation?”

What if anything should a judge do when he or she feels that the line was crossed?

Gag orders have their own set of problems and in any event, a gag order comes after the initial press release or press conference.

So, a short story in the Minnesota Lawyer frames the issue well:

U.S. District Judge Richard Sullivan, who serves the southern district of New York, recently criticized prosecutors for using press releases “designed for tabloid consumption,” saying more consideration should be given to whether such press releases are appropriate pre-conviction.

Sullivan said press releases that play up the drama of a case could undermine the presumption of innocence. A deputy U.S. Attorney from Sullivan’s district defended the practice, saying press releases were designed for lay people who “can’t read a complaint.”

Sullivan referred to one press release in particular regarding criminal charges filed against a New York City councilman and a New York state senator. The press release quoted U.S. Attorney Preet Bharara referencing a “show-me-the-money culture” and “an unappetizing
smorgasbord of graft and greed.

The Wall Street Journal Law Blog also has this story, here.

Stupid Juror Questions?

Steven Lubet

Northwestern University – School of Law

Kevin Chang

Independent

September 30, 2013

Northwestern Public Law Research Paper No. 13-32

Abstract:

Everyone knows there is no such thing as a stupid question. Well, at least every parent, teacher, counselor, advisor, librarian and boss is evidently aware of the truth of that simple maxim. Nonetheless, the obvious utility of asking questions – seeking wisdom; requesting clarification; locating information – appears to have eluded certain high officials in the justice system of the United Kingdom, not to mention a raft of journalists, a clutch of parliamentarians, and a good swath of the British public, all of whom expressed consternation at a series of written questions posed by the jurors in a high profile, though relatively low stakes, criminal case. “Do we need IQ tests for juries?” wondered one pundit, who fumed that the jury’s questions had “exposed a breathtaking level of ignorance and stupidity.” Another echoed the thought, asking whether the jury was “stupid or just confused?” This article analyzes the ten infamous questions posed by the jury in the British trial of Vicki Pryce, who was accused of “perverting the course of justice” in an attempt to advance the political career of her now-former husband. Drawing upon legal history, criminal procedure, and cognition science, we conclude that the jury’s questions were far more perceptive than the court and the British pundits realized.

“It’s Not Dead Yet” at Simple Justice has a very interesting commentary about the continuing saga of the stop and frisk case in New York.

A panel of the Second Circuit removed Judge Scheindlin despite the fact that no party asked for her removal.

Six retired federal district judges with 86 years of combined experience, together with a number of law professors – including professor Monroe Friedman – filed a brief supporting Judge Scheindlin.  In this brief they urged the Second Circuit, en banc, to reconsider the Panel’s October 31, 2013, Order, and the November 13, 2013, Opinion, and vacate the Order to the extent it reassigns the Floyd and Ligon cases from Judge Scheindlin to another judge of the Southern District of New York.

The ink was hardly dry on Justice Sotomayor’s dissent from the denial of cert in the Alabama death penalty case before the New York Times had an editorial regarding the case.

The editorial was critical of the strident support some Alabama judges have for the death penalty:

“The judges are not shy about this fact. A 2000 campaign ad for one said he “has the tough-on-crime record to be chief justice.” Another bragged that he “looked into the eyes of murderers and sentenced them to death.” One judge told The Birmingham News in 2011 that voter reaction does “have some impact, especially in high-profile cases.” Nor is it any more comforting when the judges decide to explain themselves. One judge justified his override of a life sentence for a white defendant because otherwise, he said, “I would have sentenced three black people to death and no white people.”

In his dissent from the 1995 ruling upholding the Alabama law, former Justice John Paul Stevens wrote that allowing a judge to override a jury verdict in this way severs “the death penalty from its only legitimate mooring.”

The death penalty should have no legitimate mooring at all in modern American society, and it certainly should not be imposed by a judge who is worried about keeping his job.”

Here is the full New York Times editorial.

Years ago, Penny White was cruising toward retention as a Justice on the Tennessee Supreme Court.  She was likely to become the first woman Chief Justice in that state.  And then a campaign started, in part focusing on a death penalty case that the court reversed – and that she joined in, but did not write. Penny White was defeated.

Rose Bird was the Chief Justice of California, and she too was defeated, in large part on a campaign that she was not sufficiently pro death penalty.

In those contexts, a decision (or non-decision) by the United State Supreme Court is interesting.

Justice Sonia Sotomayor dissented from the U.S. Supreme Court’s decision to deny cert for Woodward v. Alabama, a case of an Alabama defendant who was sentenced to death by an Alabama judge despite a jury’s contrary recommendation.

There are many, many fine judges in Alabama.  But, as we know since the decision in Caperton v. Massey, perceptions count.

Judges in Alabama have the authority to override a jury’s decision to impose the death penalty.  Justice Sotomayor wrote a dissent to the cert denial.  Alabama is one of only three states that allow judges to override sentencing decisions by juries, but in practice Alabama is the only state that uses the override to impose death.

In her dissent, Justice Sotomayor, joined in part by Associate Justice Stephen Breyer, focused on judicial review in capital cases, where judges have the power to impose a death sentence even if a jury does not recommend it. Sotomayor wrote that she had “deep concerns about whether [judicial review] offends the Sixth and Eighth Amendments,” which respectively guarantee a right to a speedy trial and forbid cruel and unusual punishment.

“There is no evidence that criminal activity is more heinous in Alabama than in other States, or that Alabama juries are particularly lenient in weighing aggravating or mitigating circumstances,” Sotomayor wrote.  “The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system:  Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”

As state supreme court campaigns become more expensive and more partisan, the fear of being portrayed as “soft on crime” is leading courts to rule more often for prosecutors and against criminal defendants:

That is the disturbing finding of this Center for American Progress study, which explores the impact on the criminal justice system of the explosion in judicial campaign cash and the growing use of political attack ads in state supreme court elections, which have increased pressure on elected judges to appear “tough on crime.” In carrying out this study, CAP collected data on supreme courts that, between 2000 and 2007, saw their first election in which the candidates and independent spenders spent more than $3 million.1 This includes high courts in Illinois, Mississippi, Washington, Georgia, Wisconsin, Nevada, and West Virginia. For each of these courts, CAP examined 4,684 rulings in criminal cases for a time period starting five years before a given state’s first $3 million high court election and ending five years after that election.

Here is the full report.