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.)"