False Confessions Discussed on the Oprah Winfrey Show

Yesterday, Oprah Winfrey did an entire one hour show on the subject of false confessions. An article describing one of the false confessions can be found here. The website contains other information and interviews relevant to the topic, including video of a police interrogation of the then-14 year old Michael Crowe, a boy falsely accused of stabbing his 12-year-old sister. Part 1 of Oprah's interview with a young man who falsely confessed to killing his parents can be found here.

More Coverage of Judge's Approval of Taser Use to Procure DNA Sample

The Simple Justice Blog has a copy of Judge Sperrazza's decision in the DNA/Taser case.

Plus, the Niagara Gazette has further coverage of the Niagara County Judge's ruling which permitted the police to use a taser to compel a defendant to give a DNA sample.

Supreme Court Decides that Due Process Requires Recusal in Muli-Million Dollar Campaign Donation Case

Back in March, the Indignant Indigent wrote about a case coming up before the Supreme Court in which the justices would be faced with the question of whether a judge who had received a multi-million dollar campaign contribution from a litigant should recuse himself from a case brought by that litigant/donor. Yesterday, the Supreme Court decided the case and, in a 5-4 decision, determined that due process requires recusal given all the circumstances of the case.

SCOTUSblog wrote an excellent summary of the decision that is available here.

Failure to Move Against Search Warrant Not Ineffective Assistance of Counsel

In People v. Rockel Francis, the defendant was charged with the A-II felony Criminal Possession of a Controlled Substance in the Second Degree. The government's whole case, of course, was the drugs in Mr. Francis' possession. On appeal, the defendant argued that his trial attorney was ineffective for failing to challenge the search warrant permitting a search of his residence. The Fourth Department concluded that the search warrant described an ongoing drug operation, thus establishing the validity of the warrant. The court stated:

"There can be no denial of effective assistance of . . . counsel arising from [defense] counsel's failure to make a motion or argument that has little or no chance of success (People v Caban, 5 NY3d 143, 152, quoting People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702)".

The opinion does not state three facts critical to the determination of whether a suppression motion would have been successful. What is present and undisputed in the defedant and government briefs to the court, is that the "ongoing drug operation" (a) was only known to be 17 days old, (b) the confidential informant (himself charged with cocaine possession and facing up to 25 years in jail) had only successfully bought cocaine from the location once, and (c) the day before the warrant was signed, the alleged dealer had told the informant that he did not have any cocaine and was therefore unable to complete a sale.

Speeding Driver Acted With Depraved Indifference

In People v. Michael Prindle, the defendant was driving his car at a high rate of speed (unspecified in the decision) on city streets and often drove in the opposing lane of traffic in an attempt to escape police pursuit. He was convicted of depraved indifference murder when his car struck another and killed an occupant. The Fourth Department determined that there was sufficient evidence of depraved indifference murder and affirmed the conviction. In so holding, the court said:

"Here, the evidence presented at trial established that, while attempting to escape from the police, defendant drove a van at a high rate of speed on city streets on a weekend afternoon, often traveling in the opposing lane of traffic. We thus conclude that the evidence establishes that defendant acted with depraved indifference, i.e., "a wanton indifference to human life or depravity of mind" (People v Gomez, 65 NY2d 9, 11; see People v Gonzalez, 288 AD2d 321, lv denied 97 NY2d 754; People v Williams, 184 AD2d 437, lv denied 80 NY2d 935)."

There are two interesting elements to this decision. First, the decision does not state whether Mr. Prindle killed the victim while driving in the opposing lane of traffic. Generally, just driving in the opposing lane of traffic does not evince unusual brutality, wickedness, or evil, mostly because it appears Mr. Prindle was hoping to avoid oncoming traffic and escape the police. Moreover, if he did not kill the victim while doing so, there is no causal link between the action and the result. A second, interrelated, point of interest is that the Fourth Department did not cite to Feingold or Jean-Baptiste in support of its conclusion that the defendant acted with depravity. Of course, since Register was overruled, depravity is no longer a factual circumstance (i.e. driving in the opposing lane of traffic), but rather it is a mental state. The court did not analyze how Mr. Prindle's actions evinced unusual brutality, wickedness, or evil in light of Mr. Prindle's obvious goal of evading the police. This quote from Suarez, is instructive on that point:

"Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been. Otherwise, manslaughter in the second degree would routinely and automatically become depraved indifference murder inasmuch as the victim (who was, after all, killed) was necessarily exposed to a grave or substantial risk of death. The critical statutory language that separates second-degree manslaughter from depraved indifference murder is the defendant’s underlying depraved indifference. Circumstances evincing a depraved indifference to human life are not established by recklessness coupled only with actions that carry even an inevitable risk of death. "

(People v. Suarez, 6 NY3d 202, 213-214 [italics in original).

Taser Use Approved to Procure DNA Sample

The Buffalo News reports that Niagara County Court Judge Sara Sheldon Sperrazza ruled this week that it is permissible for the police to use a taser (administering a 50,000 volt electric shock) to procure a DNA sample from a suspect.

The court first ordered the defendant to provide an oral swab, which the defendant voluntarily agreed to do. However, the government sent the DNA sample to the wrong lab for analysis, and the sample was spoiled as a result. The government then gained a ex parte order for a second oral swab and sought the defendant's compliance in gaining the second DNA sample. When the defendant refused to comply at the jail, the police handcuffed the suspect, placed him on the ground, and administered the 50,000 volt shock. After he was Tasered and agreed to the give the sample, the police charged him with contempt of court for his refusal to comply with a lawful court order.

The judge refused to suppress the DNA sample and ruled that the police used a reasonable amount of force to carry out a lawful court order.

The Indignant Indigent will provide further updates on this case as it winds its way through the courts.

New York Times Coverage of Forensic Sciences

This week, The New York Times is running a series of articles regarding the ability of certain forensic sciences to make accurate conclusions. The Indignant Indigent has written in the past about two forensic sciences that are very important to criminal investigations, but often produce faulty or skewed results.

First, the Indignant Indigent has reported on the growing tide of skepticism regarding the field of firearm and toolmark identification. The New York Times covers the subject here. The article includes remarks from various scientists who conclude that firearm and toolmark examination has not been properly supported by independent scientific research and who further conclude that the field is lacking in statistical support for its most basic claims.

Second, the Indignant Indigent has reported on the various techniques used by law enforcement to extract confessions from criminal suspects (commonly known as the "Reid Technique"). The New York Times reports on new studies which call into question some of the Reid Techniques' basic assumptions. The article is available here.

The articles also contain an internet podcast of a discussion between experts in various forensic sciences.

Court of Appeals Refuses to Vacate Sentence After Catu Violation

In People v. Paul Boyd, the defendant pleaded guilty and only afterward was informed that post-release supervision ["PRS"] was "mandatory". Mr. Boyd was not informed of the required length of the PRS. Later, at sentencing, the judge altogether forgot to impose PRS. On appeal, the defendant sought to withdraw his plea under People v. Catu and People v. Louree.

One might expect an immediate reversal since this case appears to squarely fit within Catu's and Louree's framework. However, if anyone thought that, he would be wrong. In Boyd, the court analyzed the potential impact of Sparber and Garner on future Catu claims, questioned whether Penal Law § 70.85 was constitutional, and ultimately denied the requested relief, ordering the case for return to Supreme Court for litigation of the 70.85. The court said:

"This corrective action [vacatur of the plea] should not be entertained at this time because the constitutionality of this new provision and its applicability to this case have not been sufficiently developed for our review. Although a dissenting colleague believes that Penal Law § 70.85 is unconstitutional as applied to this case (see Pigott, J., dissenting op at 4), we recognize that the issue of whether the deficiency in the plea allocution can be rectified by granting defendant specific performance of the plea agreement—a determinate sentence without imposing a term of PRS—should be determined by Supreme Court in the first instance"

This is an interesting outcome given the fact that Catu is less than five years old and given the fact that the defendant never requested any relief under Sparber (i.e. re-sentencing). The court did not overrule Catu, but it clearly refused to apply the case when faced nearly identical circumstances. Judge Pigott recognized this anomaly in dissent and stated:

"our holdings in Catu and Van Deusen and more recently in Hill make clear that a defendant is entitled to vacatur of his plea when the court commits a Catu error. Although I dissented in Hill, we are bound by this recent precedent. "

Penal Law 70.85, designed to permit re-sentencing of almost every PRS mis-step, has thrown a monkey-wrench into the Court of Appeals' jurisprudence. Specifically, troublesome to the court is that portion of the statute which permits the court to impose a sentence that does not include PRS if the district attorney supports such a result. The court recognized that ultimately, the defendant's sentence could be one that does not include PRS, assuming the government agreed (as it appeared likely to do). Although neither the defendant nor the government sought re-setencing under this provision (or for any other reason), the court reversed and remanded "to give the People the opportunity to litigate their argument regarding the applicability of Penal Law § 70.85 and for defendant to assert any constitutional challenges to the operation of the statute".

It seems safe to say that the Court of Appeals is willing to hear constitutional challenges to the statute. Any takers?

Sentence Vacated For Failure to Conduct Outley Hearing

In People v. Daniel Davis, the defendant pleaded guilty and was given the standard warning that if he was re-arrested before his return for sentencing, his sentencing promise of probation would disappear in favor of a possible one year term of incarceration. Sure enough, the defendant was re-arrested before sentencing. The court imposed the one year sentence and refused defense counsel's request to "controvert the legality or reasonableness of the arrest". The Fourth Department vacated the sentence and returned the matter for an Outley hearing by stating in relevant part:

"Where, as here, 'an issue is raised concerning the validity of the post-plea charge or there is a denial of any involvement in the underlying crime, the court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation' (Outley, 80 NY2d at 713). The mere fact that defendant was arrested, without more, is insufficient to justify an enhanced sentence based on a post-plea arrest (id.)"