Proving a negative

In a comment to a recent post ("A little shifting of the burden"), Adam Poole referenced a provision of the Texas Code of Criminal Procedure that states a judge shall submit the question of the defendant's guilt or innocence to the jury prior to final argument (Art. 37.07(2)(a)).

He also points out a couple of other provisions that have to do with alternate jurors or jurors who die or become disabled during trial. In these provisions the code states that the jury is rendering a verdict on the guilt of innocence of the defendant.

In none of these provisions, however, does it state that the jury charge must state that the role of the jury is to determine the guilt or innocence of a defendant. The provision in 37.07(2)(a) says that the judge shall "submit to the jury the issue of guilt of innocence of the defendant..."

As we should all know by now, a jury is instructed that a defendant in a criminal case is presumed innocent and that the presumption of innocence alone is enough for a jury to acquit a defendant. If a defendant does indeed start out innocent, then the burden to prove each of every element of the alleged offense falls squarely on the head of the state. If the prosecutor is able to prove each and every element of the alleged offense beyond all reasonable doubt, a jury will find the defendant guilty.

Logically it is possible to prove a positive assertion. The assertion that people are bipedal can be proven. The assertion that heating a block of ice will turn that block into water can be proven. The assertion that a certain person committed a certain crime can be proven.

But can you prove a negative assertion? It is possible to prove where you were on a certain date - can you prove where you weren't?

And that brings us to a second problem, in order to prove an assertion, you must present proof, or evidence. In order to convict a defendant, the state must present a chain of evidence that proves the defendant did what he is alleged to have done beyond all reasonable doubt.

If the state can do it, the defendant will be found guilty. If the state cannot do it, the defendant will be found not guilty.

But, if you are asking the jury to determine whether a defendant is guilty or innocent, you are placing a burden on the defendant to present some evidence that he didn't do that which he is accused of doing. And you are taking the focus away from whether the state met its burden of proof - because once the state has presented some evidence of guilt, the defendant must then present some evidence of innocence.

The verdict form asks the jury to determine whether the defendant was not guilty or guilty of the alleged offense. Not guilty is the same as not proven beyond all reasonable doubt. And that may, or may not be, a long way from innocence.

When the Code of Criminal Procedure refers to the question of guilt or innocence, the Code is looking at whether or not the state has met its burden of proof. As lawyers we understand that. When a judge tells a jury they are to rule on the guilt or innocence of a defendant the meaning of the words aren't so cut and dried.

Guilt and innocence are terms of art that mean something entirely different to attorneys in a criminal courthouse than they do to the person on the street. As the verdict is being rendered by the people on the street, the language of the charge should be geared toward the "plain" meaning of the words.

Since the jury is told they are to presume the defendant innocent, the question is not whether they think the defendant is guilty or innocent of the crime; the question is whether they think the state proved each and every element of the alleged offense beyond all reasonable doubt.

A little shifting of the burden

My topic today is nothing new. I've written about it before - and I'm sure I will continue to write about it. Of course we're talking about the shifting of the burden of proof from the state to the defense in the jury charge.

Most counties use a so-called "charge bank" where the court reporter will pull out the boilerplate language found in each charge and the language specific to each case. If you dare to question the language you'll get a funny look and the judge will explain that this is way he's done it ever since he took the bench. No to mention that someone who edited a pattern jury charge book wrote it that way, too.

So what if that's how it's always done. There are plenty of things that were done a certain way until someone stood up to challenge them. Just because a judge has used the same language for the last ten years doesn't mean it's correct.

In a criminal trial, the state has the burden to prove each and every element of its case beyond all reasonable doubt. The defendant has no such burden. He is presumed innocent. If the state is unable to meet its burden, the defendant is not guilty and everyone goes home.

The sole duty of a jury is to determine whether or not the state has met its burden of proof. If it has, the defendant is guilty. Otherwise, he's not guilty. The jury is not asked to determine whether the defendant is innocent -- that would require the defendant to prove a point. Requiring the defendant to prove anything only serves to shift the burden of proof from the state to the defendant.

But never let details such as the presumption of innocence or the right to remain silent get in the way of a judge determined to do things the way they've always been done. Heaven forbid we make the court change the language in its precious pattern charge.

The latest offender? Judge Lonnie Cox in Galveston County. Per his standard charge:

"Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations to the issue of guilt or innocence of the defendant."

Really? And just where in the Texas Code of Criminal Procedure does it state that the job of the jury is to determine whether a defendant is innocent or guilty? For that matter, what about the Texas Constitution or the U.S. Constitution?

There is a world of difference between innocent and not guilty. One is not guilty if the state is unable to prove each of the elements of the alleged offense beyond all reasonable doubt. Innocent means you didn't do it, period.

But the charge in this case took burden shifting to a new level. Since the defendant is presumed innocent, the first option for the jury to choose is not guilty. Makes perfect sense. But not in the 56th.

Nope. The first selection for the jurors is to find the defendant guilty. Just think about that for a second.

If a person is presumed innocent, the default verdict should be not guilty; not the other way around. Placing the guilty option first implies that the defense must prove something in order to move the jury to vote not guilty.

What else could have gone wrong?

Yes, Ronald Ray, the state does bear the burden of proving your client guilty beyond all reasonable doubt. You are correct, sir, in your assertion that your client is presumed innocent unless the prosecution can meet its burden.

But to have your client convicted of an armed robbery while he was behind bars as a guest of Harris County is beyond comprehension. As Mark Bennett wrote,

This is what generally happens when the defense relies on the presumption of innocence: the government proves the defendant guilty. So unfair!

And that's exactly what happened.

Mr. Ray never bothered to investigate his client's case. A simple check of the District Clerk's website would have indicated that his client had been in jail at the time of the alleged offense. Hell, your client could have told you he was in jail.

It's shameful that your client's father is the one who found out his son was incarcerated at the very moment that someone else claimed he was robbing a store.

My colleague, Jackie Carpenter, has her own take on the matter. She even included a photograph of Mr. Ray and "Rev." Johnny Jeremiah. For those of you who don't practice in Harris County, the "good reverend" is quite the notorious case runner. I don't know how much the family paid Mr. Ray - and I don't know how much Mr. Ray paid Mr. Jeremiah for the referral - but it was hardly worth it now, was it?

After an agreed motion for new trial was granted and the charges dropped by the state, State District Judge Mark Kent Ellis told everyone present that he was dismayed by what had happened.

"It boggles the mind that neither side knew about this during trial," Ellis said. "Both sides in this case were spectacularly incompetent."

It doesn't matter what the prospective jurors tell you during voir dire. It doesn't matter when they nod their heads when the judge tells them that the defendant is innocent and that he has no burden of proof. Forget about the jury instruction that tells the jurors the presumption of innocence alone is enough to acquit the defendant.

Your client did something. Otherwise he wouldn't be sitting at that table with you in front of the judge. Whether you like it or not you've got to overcome that presumption. To base your entire trial strategy on the presumption of innocence is, at best, naive and, at worst, incompetent.

Hear the one about the guy who thought he was innocent unless proven guilty?

Innocent unless proven guilty? Really?

Try telling that to Jose Torres. Mr. Torres was charged with aggravated sexual assault. It was alleged that he visited a house as a sales rep for a cable company and then went back two days later and raped a 14-year-old. The only problem was, he didn't do it.

The results of a DNA test confirmed that Mr. Torres was innocent.

But not until he had served two months in jail. No before he lost two jobs and his apartment.

Mr. Torres had never been arrested. He had a clean record. Like most folks, he just assumed that "the system" worked fairly well and he never worried about being falsely accused of a crime. No one does. That just doesn't happen to good people.

But it does happen. Our criminal (in)justice system sits logic on its head. Once you're arrested you ain't innocent unless proven guilty. No, you're guilty unless you can prove otherwise. Let's slap a high bond on you so that you can't fight your case from the outside. Let's put pressure on you to accept a deal for a crime you never committed. After all, how could the state and its allies, the black-robed prosecutors, possibly be wrong?

Mr. Torres is very fortunate. He is fortunate he is free and his case was dismissed. He is fortunate to have had  my colleague, Juan Guerra, as his attorney. He is fortunate that DNA tests were run. He is fortunate he didn't have to live the nightmare of so many other exonerees who stood and listened to juries pronounce them guilty and who sat in prison for years until someone took up their fight.

Once upon a time the grand jury system was devised as a way of protecting the reputations of those accused of crime unless there was sufficient evidence to warrant a trial. Nowadays the grand jury is nothing more than a de facto division of the DA's Office who takes its marching orders from the prosecutor presenting the case.

You could argue that in this case "the system" worked as it should. Just don't try telling that to Mr. Torres.

Letting go doesn't mean forgetting

The constant clamor for a guilty verdict before the evidence has even been presented. The call for someone to pay for what happened. A verdict that stuns the folks expecting to celebrate a conviction. The inevitable cries that the jury didn't know what it was doing.

The Casey Anthony trial in Florida?

No.

The Sandor Kepiro trial in Budapest.

But who is Sandor Kepiro, you might ask.

Mr. Kepiro was accused of being a Nazi war criminal responsible for the deaths of 36 Jews and Serbs in Novi Sad in 1942. He was acquitted this week.

In 1944, Mr. Kepiro was convicted and sentenced to 10 years in prison, but that conviction was overturned  after a coup d'etat put the fascists in power in Hungary. Mr. Kepiro fled the country and eventually found himself in Argentina. In 1946 the newly installed Communist government tried Mr. Kepiro in absentia and, surprise, convicted him.

Mr. Kepiro returned to Hungary in 1996 and was charged for his alleged role in the massacre in 2009. Those charges were later dropped. He was charged once again earlier this year. 


Mr. Kepiro's chief accuser, Efraim Zuroff of the Simon Wiesenthal Center, wasn't particularly happy with the verdict.

As he left the courtroom, Mr Zuroff said he found the verdict "outrageous, absurd" and that the Simon Wiesenthal Center would do "everything possible to see that it's overturned".

He said Mr Kepiro had "devoted all his energy to the murder of innocent men, women and children" and that the Wiesenthal Center found it "absolutely outrageous that a person like this was never punished for his crimes".

"We'll continue to do whatever we can so that Sandor Kepiro doesn't end his life sitting in peace and tranquillity... but ends his life where he belongs, in a Hungarian jail. This is a joke."

For true believers, the thought that a rational thinking person could come to a contrary conclusion is heresy. The only possible explanation is that the judge or jury hadn't the foggiest clue as to what they were doing.

We are talking about an incident that took place almost 70 years ago. There can't be many witnesses left - Mr. Kepiro is 97. The case must be built on documents - documents that may not even exist anymore. Maybe Mr. Kepiro escaped justice -- and just as likely he did not.

The larger issue, however, is at what point does it end? I have no doubt that there are Nazi war criminals that have escaped justice. I'm equally certain that, at some point, we just have to call it a day. Whose interest is served in putting a 97 year-old man on trial for a crime that occurred in 1942?

The genocide that took place at the hands of the Nazis cannot be excused and must never be forgotten. But we must also acknowledge that, there is no purpose served in hunting down men in their 80's and 90's and trying them for crimes committed during the 1930's and 40's. These men are old - and, more importantly, they aren't the same men who presided over the killings of millions of people.

At this point in time our children and their children are better served by documenting the atrocities that took place and examining how and why they were allowed to occur.

Always remember that history is written by the victors. No one prosecuted President Truman or any of the soldiers involved in dropping atomic bombs on Hiroshima and Nagasaki and killing thousands who had no role in the war. No one prosecuted Presidents Eisenhower, Kennedy, Johnson or Nixon, or their military commanders, for the slaughter of innocents in Southeast Asia. No one will prosecute Presidents Bush or Obama or their minions for the torture inflicted upon detainees in the witch hunt after 9/11.

Closure is an illusion. Sometimes you just have to move on.

Testing the presumption of innocence

Why is that whenever someone discusses the verdict in the Casey Anthony case they must preface their comments by stating that they think she was guilty? I was in the elevator at the Criminal (In)justice Center this morning and one of my fellow attorneys said, in reference to the verdict, that you should never allow the facts (or the law) to get in the way of a good case. He thought Ms. Anthony did it.

My colleague Murray Newman posted on his blawg that he disagreed with the jury. He said he thought the jury was "gutsy" in acquitting Ms. Anthony. In his other blawg (for Houston's leading source of misinformation), Mr. Newman noted that even though he hadn't sat through the trial, he felt Ms. Anthony was guilty. 

I didn’t watch a single minute of the Casey Anthony trial.

I didn’t watch any of the testimony live.  I didn’t watch a nightly recap.  I certainly didn’t listen to Nancy Grace prattling on as if she were God’s chosen mouthpiece to all things related to criminal justice.

My knowledge of the trial was nothing more than what I heard in passing.  I had only a thumbnail sketch of the accusations and the evidence.  Maybe I’m crazy, but I don’t like going over the details of a child’s death unless I absolutely must.

But based on what little I knew of the case, Casey Anthony sure sounded pretty guilty to me, though.  Where there is smoke there surely must be fire and circumstantial evidence is still evidence at the end of the day, right?

I didn't watch any of the trial either. I didn't watch any of the nightly prattle that passed as "analysis." Hell, I didn't even know who Casey Anthony was until Brian Tannebaum, Scott Greenfield and Mark Bennett wrote about attorneys who were either commenting on the case or paying a p.r. flack to get themselves on television as commentators.

I don't know how Caylee died. I don't know if Ms. Anthony had anything to do with it. I don't know if her father had anything to do with it. And neither does anyone else who didn't sit on that jury and listen to the evidence that was placed before them.

The public made up its mind based on the mindless blabbering of Nancy Grace and her minions. If you weren't on the jury then you got to hear all sorts of stuff that wasn't allowed in the courtroom. You heard "evidence" that wasn't relevant or was deemed too prejudicial.

Ms. Anthony was innocent the day she was arrested. She was innocent the day she was arraigned. She was innocent the day the jury was sworn in. And because the government's lawyer couldn't prove his case beyond all reasonable doubt -- she is still innocent.

That's what the presumption of innocence is all about.

It's not about whether she got away with something or whether someone thinks she did it. The state failed to prove she had anything to do with the death of her daughter.

I am very happy today that there were twelve men and women who understood the concept and the idea of the presumption of innocence. I am happy that there were twelve men and women who held the government's feet to the fire and forced them to prove up the elements of their case. I am happy that there were twelve men and women who didn't just "add up" the evidence and decide Ms. Anthony was guilty. I am happy that there were twelve men and women who understood just what it means to presume another person is innocent unless prove guilty beyond all reasonable doubt.

No one criticizes juries who convict innocent people. No one criticizes juries who find people guilty despite a paucity of evidence. No one criticizes juries who ignore the presumption of innocence or who hold a defendant's silence against him.

But heaven forbid a jury do its duty.

A father's concern

My client's father was concerned.

He was concerned that the case hadn't been resolved.

He was concerned whether this case would cost his son employment opportunities.

He was concerned because the court had ordered his son to install an ignition interlock device in his car.

He was concerned because the DPS wanted to suspend his son's driver's license.

He was concerned because his son hadn't been convicted of anything but he was already being punished.

We're immune to it at times. We're at the courthouse most days and we're juggling dozens of cases at a time. We know how long it takes for a case to wind its way from arraignment to trial. We know that most of our court appearances are a colossal waste of time for everyone involved.

We know that this quaint notion of innocent unless proven guilty is often turned on its head at the courthouse. We're aware that most judges view a defendant as guilty until proven otherwise.

The only problem is we're inside the fishbowl. Our clients and their families are on the outside looking in. What we see as part of the daily grind they see as a monumental inconvenience.

I couldn't offer him any words to ease his concern. His son is being punished and he hasn't been found guilty of anything.

I don't have an answer.

All the king's horses...

vic·tim   noun \ˈvik-təm\
1 : a living being sacrificed to a deity or in the performance of a religious rite2 : one that is acted on and usually adversely affected by a force or agent : asa (1) : one that is injured, destroyed, or sacrificed under any of various conditions    (2) : one that is subjected to oppression, hardship, or mistreatment b : one that is tricked or duped 

Both Scott Greenfield and Jeff Gamso have posted recently about bending the rules so that the "victim" of a crime gets a say-so in how a case is resolved. While politicians love to court votes by being "tough on crime," too often they are just butchering the Bill of Rights. They open their mouths without stopping to think that without a crime, there can be no victim.

Take a second to let that sink in. Until a person has been found guilty (by plea or by trial), there was no crime. It is only after the conviction that we can conclude that a criminal act took place. It is only then that there is a "victim."

It's not unusual where I practice for the police to be called out on a domestic disturbance call where there is an allegation of an assault. Upon arrival, the police will arrest the male and he will be charged with assault of a family member. Then, after she realizes that her husband or boyfriend is being charged with a crime, the woman will either contact the defense attorney or the prosecutor and try to get the charges dropped.

Then, when we appear at the courthouse, the prosecutor will tell me that, even though the complaining witness has signed an affidavit of non-prosecution and has told the prosecutor she will not cooperate in the case, he is powerless to dismiss the case because the man was accused of a crime.

But, try to work out a plea on a more serious felony matter and the prosecutor will tell you that he or she must consult with the complaining witness to see if they're okay with the proposed resolution of the matter.

You can't have it both ways. Either the complaining witness has a role in the prosecution or they don't.

Whenever one of our clients is charged with a criminal offense, the charge reads "The State of ___" or "The People of ___" or "The Commonwealth of ___" on the left side of the vs. It's not "Jane Doe" vs. "Joe Bob." And it shouldn't be.

If Jane Doe wants to exact her revenge on Joe Bob, she can hire an attorney and file suit at the civil courthouse alleging that Joe Bob committed any of a number of torts against her or her property. Now she might not be happy that the only recompense she can get is money (if she can collect) - but she's not being made whole at the criminal courthouse, either.

Our justice system can't unring the bell or undo the damage that's been done. Ir can't make an injured party whole. The civil system can award money to the victim of a tort and the criminal system can punish a person deemed to have committed an offense. But that's all it can do.

If the alleged victim of a criminal offense wants his or her voice to be heard, sit at the witness stand and testify under oath as to what happened and how it affected your life. Subject yourself to cross-examination. There is no place in the criminal courtroom for a so-called victim impact statement. Presumably the prosecutor has either talked with the alleged victim or has enough experience to know what an appropriate offer for a given crime is. I would also assume the judge has a pretty good idea of what's appropriate sentence.

See also:

"Failure to yield the right of way," The Defense Rests (May 24, 2011)

Reciprocal discovery would only harm defendants

Wouldn't it be great to have a laundry list of items that the state is required to produce prior to trial?

No more drafting discovery motions to get any recorded statements made by your client or anyone else the state intends to call at trial. No more drafting discovery motions to get a listing of any prior convictions for your client. No more drafting discovery motions to obtain search warrants, affidavits and returns. No more drafting discovery motions to obtain a list of expert witnesses the state intends to call. No more drafting discovery motions to get your hands on those experts' reports.

Sounds pretty damn good, doesn't it?

That is if you don't mind giving the prosecutor any written statements you client made, any information you have about his criminal record, a list of evidence you plan to introduce at trial, the names of your expert witnesses and any written reports they may have produced.

Reciprocal discovery only sounds like a good idea to the civil attorneys who are trying to find a way to replace their income after tort reform and attorneys who are too damn lazy to do any work on a case outside of standing alongside their client as they accept the state's latest offer.

The proposed legislation makes a mockery out of the 5th Amendment's protection against self-incrimination, emasculates the presumption of innocence and lowers the state's burden of proof.

Bill would allow convictions based upon prior bad acts

Texas State Senator Joan Huffman (R-Southside Place) is at it again. This time she's introduced a bill (that passed out of the Senate Criminal Justice Committee) that would allow the state to introduce evidence of prior criminal acts during the so-called "guilt/innocence" phase of trial to show that the defendant was a bad dude.

According to SB 152, anytime a defendant is charged with a sexual offense involving a minor, the state could introduce evidence of similar prior offenses committed by the defendant to show "the character of the defendant."

Current law allows the state to introduce evidence of prior sexual offenses involving the defendant and the complaining witness to show the parties' state of mind and any previous or subsequent relationship between the two.

Ms. Huffman's proposed bill would allow the state to obtain a conviction based not upon the evidence presented of the alleged offense, but based upon evidence of prior convictions or bad acts. In other words, a person could be found guilty because they did something bad before.

According to Ms. Huffman, the proposed legislation would bring Texas rules more in line with the Federal rules. Now that seems like a pretty strange argument for a conservative Texas Republican to be making. The Tea-baggers and their fellow travelers rail against the federal government and argue in favor of states' rights. Apparently that only applies when los federales haven't bowed to the social conservative agenda. If the State of Texas broadens rights defined under the US Constitution then I suppose we need less state sovereignty.

The proposed legislation is bad. A person on trial should only be judged on the evidence of the offense alleged - not on the basis of what he or she may have done in the past.

The hidden agenda

How anyone can think it is appropriate in any way shape or form for counties to place displays in front of their courthouses for crime victims is beyond me. The latest one comes from a reader by the name of Kirk who sent me a link to the display in Henderson County.

According to this article in the Tyler (Texas) Morning Telegraph, it's not laundry day on the square in Athens, it's a memorial to the victims of crime, primarily domestic or sexual assault.

I understand the need for cathartic therapy. I understand that someone who has been sexually assaulted must deal with unseen scars long after the assault is over.

But I also understand that everyone criminal defendant who walks into the Henderson County Courthouse is presumed innocent unless the state is able to prove each and every element of its case beyond all reasonable doubt. Every potential juror in Henderson County will walk right past this display every day that it's up. The display was approved by the County Judge and Commissioner's Court. (For those of y'all not familiar with the way we do things in Texas, those are the folks who rule supreme in the county.)

Criminal cases are tried in the name of the state. That's the government, folks. The government approved the placing of the display on the courthouse grounds. The government is bringing charges against people for allegedly breaking the law.

Each and every one of these displays across the state violates the rights of a defendant in a criminal case. Each and every one of these displays is put up with the purpose of influencing jurors. It is part of the ongoing assault on the Bill of Rights and our constitutional protections.

See these previous posts:

"Presumption of innocence? What presumption of innocence?" (Oct. 5, 2009)
"Not a good week to be on trial in Montgomery County" (Apr. 11, 2011)

Office policy

Last week, my colleague Mark Bennett wrote about his experience with a "total refusal" case. His client declined to perform the officer's agility tests at the scene or at the station and declined his request to blow in the state's breath test machine.

Her reward, of course, was being arrested for driving while intoxicated. In the courtroom, Mark told one of the prosecutors that the case was a "try it or dismiss it" case and that he thought it should be dismissed. The prosecutor then informed him that it was "office policy" to try all total refusal cases.

My first thought was this: another stupid Lykos policy, implemented without consideration of the ethical ramifications. Trying all total-refusal cases might be politically-appealing: it might encourage people to cooperate with the police agility exercises by sending the message that refusing to play is not a free pass; it might make the DA appear to the SWRVs to be tough on crime. 

But a policy of trying all total-refusal cases will result in people being put to trial on legally insufficient evidence—a waste not only of the defendant's time, but also of valuable and increasingly scarce public resources. Every court day spent trying a total-refusal case is a day that could be spent trying a family-violence assault case; for every frivolous case the DA's Office tries, it has to lower its plea offers on a host of other cases. 

Further, even when the evidence is legally insufficient, anything can happen in a jury trial. In every case, there is a chance that something will go wrong for the government, or that something will go wrong for the defense. If the government forces enough cases that should be dismissed (because the evidence appears to be nowhere near proof beyond a reasonable doubt) to trial, someone will be convicted. So, aside from wasting resources, a policy of trying all total-refusal cases will result in people being convicted on factually and legally insufficient evidence.

I don't know how to break it to Ms. Lykos' minions -- "office policy" doesn't trump a prosecutor's ethical duty to see that justice is done. If you have no evidence other than an admission of drinking and an alleged traffic violation - you don't have sufficient evidence to force a citizen to defend themselves in front of a jury.

That's not enough to expose a motorist to a $3,000 surcharge as well as probation fees and community service - not to mention the stigma of being a convicted criminal. Law clerks follow "office policy." Attorneys are professionals who are trained to think for themselves. Presumably a prosecutor in the courtroom is competent enough to evaluate a case to determine whether or not it should be dismissed or prosecuted. A prosecutor who decides to dismiss a dog shouldn't have to justify that decision to his boss. Such a policy only discourages prosecutors from acting like attorneys.

Of course prosecutors aren't the only folks over at the Criminal (In)justice Center who blindly apply "office policy" to cases.

Recently I was retained on a DWI case in which my client declined to blow in the state's breath test machine. At his arraignment setting the judge ordered him to install an ignition interlock device in his car. I asked the judge why he would require an interlock in a case in which there was no accident and no breath test.

The judge responded that he always requires an interlock if there was an accident, a breath test over .15 or a breath test refusal. He doesn't, however, require an interlock if the breath test is under .15. It's a policy that makes no sense.

The judge hasn't read the offense report. The judge hasn't seen the video. All the judge knows is whether there was an accident or a breath test. Might my client have had an alcohol concentration of .15 or higher? Sure. Might he had had an alcohol concentration of more than .08 but less than .15? Yes. Might it have been less than .08? Certainly.

Regardless of what his alcohol concentration may or may not have been, my client is innocent unless the state can prove each and every element of its case beyond all reasonable doubt. By ordering an interlock device as a condition of bond for a motorist who declined to blow, the judge is casting the presumption of innocence aside.

All in the name of "office policy."

Not a good week to be on trial in Montgomery County

By proclamation of our dear leader, the fair-haired one, Governor Rick Perry, the week of April 10-16, 2011 is "The Defendant's Not Deserving of a Fair Trial Week."

We all have the right to be free from unreasonable search and seizure at the hand of the state. Those accused of breaking the law have the right to remain silent and the right to consult with an attorney. Defendants at trial have the right to trial by jury and due process rights, including the right of confrontation.

The state has the right to notice of certain items as well as the right to demand a trial by jury.

The complaining witness (the alleged victim) has no rights in criminal court. The complaining witness is not a party to the litigation.This notion that "victims" have rights assumes that a crime was committed and is used as a front for attacking the Bill of Rights and a criminal defendant's due process rights.

Up in Montgomery County they take that notion to an extreme with a banner across the courthouse entrance and a "Crime Victim Memorial Wall" in the courthouse. Nothing like walking a jury passed those displays and then expecting them to sit in judgment of another without being influenced by it.

When a person sits at the defense table facing a jury of his peers, he deserves a jury that is going to make its decision solely on the facts of his case, not a jury that's going to base its decision on the fact that someone thinks a message must be sent or that a statement must be made.

Now I'm sure there are plenty of folks who don't see the problem with these proclamations and displays - and I understand that attitude. After all, most of us will never set foot in a courtroom accused by the state of committing a criminal act. But in the event that someone you know finds himself or herself in that position, would you want a jury who would presume them innocent unless proven guilty or a jury that was exposed to pro-prosecution propaganda on the way into the courthouse?

That's the real issue here.

Still a bad idea -- even with a fancy name

Reciprocal discovery. It sounds so innocuous. Since the State is required to make certain documents in a criminal prosecution available to the defense, why shouldn't the defense be required to do the same in return?

Over at Grits for Breakfast, Scott Henson wrote about a proposed bill that would require reciprocal discovery in criminal cases:

Chairman Pete Gallego has a bill up requiring mutual pretrial discovery for both the prosecution and the defense, with related bills up by Reps Guillen and Dutton. If you get four lawyers in the room you're likely to get five opinions on the subject, but I'm not a lawyer and as I've listened to the debates over the years, I've warmed to the idea. There has to be some way to ensure exculpatory evidence is disclosed before trial. Just requiring open files of prosecutors might be my personal preference (many counties operate that way just fine), but having witnessed this fight go on for years, I know it will take at least minimalist defense disclosure to seal the deal politically at the Lege. Mutual discovery isn't a bad compromise given the severity of the problem.

Now Mr. Henson doesn't practice criminal defense (though he is well acquainted with some that do) so I wouldn't expect him to understand the consequences of such a requirement.

In a criminal prosecution, the attorney representing the state is attempting to prove a person committed a criminal act. That person is presumed innocent unless the state's attorney can prove otherwise. The person accused has no burden to prove anything. The state's attorney must present evidence for the finder of fact to consider in determining whether or not the state's attorney has met his burden of proof.

The "system" is set up to make it as difficult as possible to convict someone (though you would find that notion hard to believe in most courtrooms). The only person in the courtroom with a right to a fair trial is the person accused. The government has no due process rights in a criminal trial - nor should it.

Requiring the person accused to turn over evidence to the state's attorney would serve to lower the government's burden of proof. The state's attorney would know the identity of all potential defense witnesses. The state's attorney would have alibi evidence. The state's attorney would know the trial strategy of the person accused.

Many times the defense strategy is to point out holes in the state's theory of the case that could lead a jury to find reasonable doubt that the person accused committed the offense alleged. In those cases the person accused rarely puts on any evidence - the entire case is centered on the state's burden of proof. If the person accused did not produce any documents during pretrial discovery, the state's attorney would have a pretty good idea of what defense counsel's trial strategy would be.

That might seem "fair" - but we're not talking about a process in which both parties are on an equal footing. There is a reason that criminal cases in Texas are styled The State of Texas v. the accused. If we were just arguing over insurance money then the civil discovery rules are appropriate. But when we talking about the very freedom and liberty of an individual - the burden on the party seeking to restrain that freedom or liberty should be as heavy as possible.

We should never do anything to lessen that burden. That could be you on the other side of the v. one day.

Emotion and the presumption of innocence

So the Harris County DA's Office has egg on its face because a woman charged with six counts of reckless injury to a child and three counts of child abandonment up and flew back to Nigeria before she could be arrested. Jessica Tata is accused of leaving a household of children in her "day care" center unattended while she ran errands. During her absence a fire broke out and four of the children died.

It's a tragedy. There's no other way to describe it. And, if the allegations are true, Ms. Tata's conduct was beyond inexcusable.

But, she's only been charged. She's not been convicted.

That means that Ms. Tata is innocent unless the state proves her guilty beyond all reasonable doubt. She wasn't charged with anything at the time she boarded that plane back to Nigeria. She had every right to leave.

You see, sometimes the presumption of innocence can be hard to swallow.

Unless the police could muster probable cause to believe she committed a crime, they couldn't place her under arrest. Everyone seems to want to blame Pat Lykos or the fire marshall or someone for allowing Ms. Tata to leave the country. I don't think anyone's to "blame" for it because I don't think there's anything that you can blame on anyone in this case.

What should we do? Lower the standard of proof needed to arrest someone? Lower the standard just for suspects who aren't citizens of these United States? What about if a child is injured? Just what bad law do you propose we enact because something distasteful happened?

Maybe, just maybe, the "system" worked in this case. Maybe, just maybe, law enforcement dotted their i's and crossed their t's before trying to make an arrest. Maybe, just maybe, someone did not allow the emotion of children dying cloud their judgment when it came time to decide how to proceed.

Maybe this case is the perfect test of how deeply ingrained our belief in the presumption of innocence is. Is it better than one guilty person go free than that one innocent person is punished? How about ten guilty people going free? One hundred?

Jessica Tata is not guilty of anything. In fact, right now, she's innocent.

Guilty unless proven otherwise

Who among us hasn't commented about the "black-robed prosecutor" sitting on the bench or about having to try a case against two prosecutors - the one at the table and the one at the bench?

On numerous occasions I've sat in the courtroom while the jury was out of the room and listened as the judge advised a young prosecutor how to get a specific piece of evidence admitted or how to lay the proper predicate.  One judge even told a prosecutor while the jury was out to offer our client five days on a second DWI because, as the judge said, the conviction mattered, not the time.

Critics say the judicial system in the Khodorkovsky case worked just the way Prime Minister Vladimir Putin wanted it to. Days before Khodorkovsky's new conviction, Putin said on television that "a thief belongs in jail." It was almost as if he gave the judge a signal, instructing him on what to do.

According to a piece on NPR's Morning Edition, we're not the only ones playing against a loaded deck.

It seems that one is not presumed innocent unless proven guilty in the Russian Federation -- one is merely waiting to see how bad the sentence will be.

[J]udges seem to behave like they are an extension of law enforcement. Prosecutors file charges, and it's a judge's job to convict rather than interfere.

Wander in and out of enough courtrooms at the Harris County Criminal (In)justice Center and you may very well walk away with the same impression. During the recent election it was hard to tell whether some of the judicial candidates were running for the bench or for county sheriff.

One former judge, Alexander Melikov, told NPR that the judges are not bad people. It's just that many have a "mindset that a court is a law enforcement body; it is not an institution there to protect citizens." When he tried to work outside the system around 2003 and '04, his superiors complained that his decisions were too lenient — and he was fired.

It may attract votes to run on a platform of being tough on crime, but it's highly improper and might even be (gasp) unethical. A judge's sole role on the bench is to act as am impartial arbiter. His job is to listen to the arguments of counsel when deciding upon the merits of a motion or determining whether objections should be overruled or sustained.

And, should a defendant come before the bench for sentencing - either on a plea without a recommendation or as the result of a conviction, the judge is obligated to consider the entire range of punishment for that offense -- including probation.

I've asked the question before, and I'll ask it again, when a judge's campaign material says he's "tough," what does that mean? Is he going to hold the state to its burden of proof? Is he going to lend a critical eye to allegations that the police violated a defendant's constitutional rights? Or is he going to act as the second prosecutor in the courtroom?

That's what they do in Russia.

Defending the new arrest law: Responding to critiques by lawyers and feminists

The Code of Criminal Procedure (Amendment) Act 2008 has come under much criticism. Having received presidential assent, it only needs notification by the government to be enforced. At the heart of the controversy is the new section 41, coupled with section 41A which redefine and liberalise the law on arrest.

This has infuriated the lawyers enough to go on a series of strikes demanding that the law should not be notified.

There are two strands of criticisms: criminal law will lose it power of deterrence, and, more specifically, that section 498A IPC cases dealing with cruelty against a woman by her husband and in-laws will lose teeth.

In this article, I detail the changes brought in by the amendment and also respond to the first criticism as being misplaced.

The government's main motive in bringing this amendment appears to be to free up space in our prisons and reduce the burden on our criminal courts. In fact, the latter is the main worry of some lawyers - the new amendments might drastically reduce the number of bail cases. While prison populations should reduce, I explain in my article that courts will continue to be clogged up since the amended law opens new (and, in my opinion, welcome) avenues of challenging arrests and impending arrests. Therefore, the lawyers' self-serving worry is also misplaced.

The critique from a section of the women's movement regarding section 498A was not responded to in the article. Here is an attempt to do so:

In an illuminating essay titled “Protecting Women against Violence?: Review of a Decade of Legislation, 1980-1989”, in State and Politics in India (Partha Chatterjee, ed.), Oxford University Press, New Delhi, 1997, Flavia Agnes had questioned the wisdom of Indian feminism's demand for successive law reforms that had only ended up further empowering the state. Feminism's important intellectual contribution was dismantling the private-public divide - something most contemporary civil liberties movements have come to accept and accomodate. However, there is much good in traditional ideas like the presumption of innocence, scepticism of the state and limited and justified exercise of police powers, which are often sacrificed not just by the women's movement, but also other social justice movements (SC/ST Prevention of Atrocities Act, 1989 being one example). On the other hand, the Protection of Women from Domestic Violence Act, 2005 is one example of a legislation that can respond to social justice concerns effectively without necessarily curtailing civil liberties. I believe there is a lot more to be said about Indian social justice movements' uneasy, if not sometimes antithetical, relationship with the civil liberties movement; as well as on their choice of the state as their site of struggle.

The broader debate aside, surely section 498A cannot be the only feminist concern. The state routinely uses its police powers to arrest, harrass, intimidate, abuse, torture and blackmail the most vulnerable sections of our society - sex workers, bar dancers, hijras, street children, beggars and other minorities. A good section, if not the majority, of this 'lumpen' prolitariat is constituted by women. The new provision will not stop their exploitation - but it surely will be one more weapon to fight such exploitation. If, and when, the spirit of the new provision is institutionalised within the police force, it will be really difficult to arrest these 'petty criminals'. Is this not something that should at least be considered as part of the equation?

Links to the legislative history of the provision (Hat tip to Venkatesan):
1. 154th Report, Law Commission of India
2. 128th Report, Rajya Sabha Standing Committee on Home Affairs

Guest post - Constitutionality of reverse onus clauses

This is a guest post from Karan Lahiri, a final year student at National Law School, Bangalore, on a recent judgment on the constitutionality of reverse onus clauses:

'Noor Aga v. State of Punjab examines the ‘reverse burden’ of proof in Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The interesting portions of this judgment deal with the constitutionality of this ‘reverse burden’. Though this has been upheld on previous occasions by the Supreme Court and certainly could not have been struck down in this matter by the division bench consisting of Justice Sinha and Justice Sirpurkar, I feel that this is the first matter which has really placed ‘reverse burden’ under a constitutional lens.

In a nutshell, the Appellant was an Afghan national from whom a quantity of heroin was allegedly recovered at Raja Sansi Airport, Amritsar, apparently concealed in the secret compartment of a carton containing grapes. The reverse burden placed on him was due to Sections 35 and 54 of the NDPS Act, as mentioned earlier. Section 35 states:-

“In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.”

Section 54 states:-
“In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of –
(a) any narcotic drug or psychotropic substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance; or
d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured, for the possession of which he fails to account satisfactorily.”
What is significant in this judgment is that it speaks of presumption of innocence as a human right. While Justice Sinha invokes Article14(2) of the Intentional Convention on Civil and Political Rights, it is initially unclear as to how he plans to place this right in the context of the Constitution of India generally, as also how he plans to test the NDPS Act on the basis of this right in particular. The first important hint in this regard is the statement that merely placing the burden of proof on the accused would not render a provision doing so unconstitutional. Therefore, it is clear that there must be some counterweight when the burden is placed on the accused. The judgment states:-

“A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld.”

From this statement, one gets a sense that Justice Sinha seeks to scrutinize the proceedings under a law providing for a reverse burden more strictly than he seeks to scrutinize the law itself, especially since the judgment goes on to state that a stringent law requires stringent compliance with procedure. It seems that this insistence stems from the right to fair trial, given that the following passage from the matter of South Africa in State v. Basson 2004, (6) BCLR 620 (CC), a war crimes case before the constitutional court of South Africa, has been cited with approval in the judgment:-

“When allegations of such serious nature are at issue, and where the exemplary value of constitutionalism as against lawlessness is the very issue at stake, it is particularly important that the judicial and prosecutorial functions be undertaken with rigorous and principled respect for basic constitutional rights. The effective prosecution of war crimes and the rights of the accused to a fair trial are not antagonistic concepts. On the contrary, both stem from the same constitutional and humanitarian foundation, namely the need to uphold the rule of law and the basic principles of human dignity, equality and freedom..”

Here, it becomes clearer as to how reverse burden provisions are to be tested in the context of constitutional/human rights, given that the right to fair trial and human dignity are invoked to justify rigorous compliance with procedure. Enforcement of law and protection of citizen from the operation of injustice in the hands of the law enforcement machinery are the two factors to be balance according to Justice Sinha, and we finally discover the counterweight to a provision stipulating reverse burden where the judgment states that “[the] constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens.”

Put simply, this case acknowledges ‘presumption of innocence’ as a human right, but goes on to state that “limited inroads” might be made with respect to this right. However, when such inroads are made in the form of a reverse burden placed on the accused, such a provision must be read in light of Articles 14 and 21 of the Constitution insofar as they contain within them the right of fair trial and human dignity. This reading, apart from testing the law itself, is more useful in testing all prosecutions carried out under such law. The stricter the offence and the more stringent the statute, the more searching is the scrutiny involved.

As a final word, I would like to point out an issue of hard criminal law in this case. This was a case where various discrepancies had crept in to the way evidence had been adduced by the customs authorities (to mention just a few, the bulk quantity of heroin, the carton as also the samples had gone missing!) and, taking a cumulative view of the same, the bench ruled in favour of the accused. What is of interest is that this is perhaps the first case on the NDPS Act I have read (not that I’ve read all that many) which clearly points out the obvious fact that before the reverse burden on the accused is placed under Section 54 of the Act, the burden is on the prosecution to prove the element of “possession” beyond reasonable doubt. The judgment rules that the prosecution, in this case, did not satisfy this, especially in light of the fact that the stringency of the statute and the seriousness of the alleged offence heightened the level of scrutiny and made this particular burden on the prosecution more onerous.'