Thursday, October 22, 2015

The epidemic and the possible cures?

In the recent years of activities by the Innocence Project, when new scientific evidence and investigations uncovered the ugly stories behind convictions and lengthy sentences of hundreds of convicts, based on false eyewitnesses, police framing, false confessions, and prosecutors withholding material exculpatory evidence under Brady, there has been a real effort to confront the reality, name it by its name and find a cure. The laws on prosecutor's duty to disclose exculpatory evidence have been in place for a long time, at least since the cardinal case of Brady v. Maryland (1963) 373 U.S. 83, when the Warren court laid out the landmark ruling, that withholding of evidence material to guilt or innocence by prosecuting agencies is in violation of the due process. Multiple Supreme Court and state court cases since then have elaborated, articulated and specified the parameters of this simple rule. The prosecuting agencies, which includes the law enforcement, not only have had to disclose what they had available, but also have a duty to preserve evidence that was material to guilt or innocence. Arizona v. Youngblood (1988) 488 U.S. 51; California v. Trombetta (1984) 467 U.S. 479.

But the law was given lipservice and was shed in so many outrageous ways that it begs the question: are we a nation of laws any more? As the recent developments have shown, the prosecutors and their agents have been routinely concocting convictions by withholding evidence that could exonerate the defendants. Brady violations are routine in our practice. We don't get evidence even when we specifically ask for it. The Brady duty is self-executing. The prosecutor has an independent duty to disclose it regardless of any requests. The unfortunate fact is that the law enforcement has priority access to all evidence, as they get to the crime scene first, and are the first to speak to eyewitnesses, to gather forensics, ballistics, etc. There is a lot of room for improper conduct which can be undetected for years and years. The problem has become so widespread that the Ninth Circuit Judge Kozinski, has called this an 'epidemic' of prosecutorial misconduct in California and has spoken openly in a scathing indictment against these practices, calling to end them. See here. But the most appalling is that, as Kozinski stated, '[they] got caught this time, but they are going to keep doing this, because they have state judges who are willing to look the other way.' 

The law enforcement will keep doing this, but why do prosecutors, as attorneys who are sworn to uphold the laws, and have ethical responsibilities, fall into the trap?! It is a question that begs another question. Is the system set up in a way that encourages this prosecutorial misconduct?! Do prosecutors have sufficient discretion in their offices to do the right thing, to gather the correct information. Is the desire to obtain a conviction stronger than the prosecutorial duty to obtain justice? 
 Whatever the motives and reasons behind the prosecutorial misconduct, the question is how to cure the epidemic. As Judge Kozinski correctly pointed out, while the judges are willing to keep looking the other way, the prosecutors will not have any incentive in correcting their behavior. As he stated: 

"While most prosecutors are fair and honest, a legal environment that tolerates sharp prosecutorial practices gives important and undeserved career advantages to prosecutors who are willing to step over the line, tempting others to do the same. Having strict rules that prosecutors must follow will thus not merely avoid the risk of letting a guilty man free to commit other crimes while an innocent one languishes his life away, it will also preserve the integrity of the prosecutorial process by shielding principled prosecutors from unfair competition from their less principled colleagues."
 See here . See here for the full article.

 Kozinski has offered many solutions to this epidemic, one of which is to have judges appointed, rather than elected. In his opinion, if judges had the political autonomy, not bound by public opinion, they would have more incentive to reign in these rogue prosecutors. It is true that judges as most elected officials feel they have a duty to follow the public sentiment that is generally calling for toughness on crime and stronger victim's rights. However, as a criminal defense attorney of almost 10 years, I have not seen any difference between appointed and elected judges in that regard. The appointed judge, just as the one who is up for re-election, is scared of the spectre of her name appearing in the papers, in connection of a heinous crime by a 'criminal' who was released on bail or probation by her. Hence, tough and lengthy sentences. Hence, the desire to convict. Hence, institutional approval of prosecutorial misconduct and  no scrutiny of law enforcement techniques that obtain convictions. There are various pre-trial motions filed by us, defense attorneys, that give multiple opportunities to judges to scrutinize the law enforcement tactics in obtaining the evidence. However, they turn a blind eye, denying suppression of unlawfully obtained evidence, whether it is a confession or real evidence, denying motion for personnel file of the involved police officer, denying motion to exclude confession obtained in violation of Miranda rules, denying motion to obtain prior criminal record history of alleged victim.... 

The reality is that most judges are former prosecutors, whose sympathies and loyalties are aligned with the prosecutors doing these outrageous things to obtain convictions. In a perfect world they are impartial arbiters of justice. Some of them are and do strike the proper balance. But so many more are simply not up to the task. Those who do the right thing almost often face political repercussions.

California has recently passed the bill AB 1328 here, that mandates judges to report individual prosecutors to the State Bar for failure to disclose exculpatory evidence. It also allows the judges to disqualify not only the individual prosecutor for a Brady violation, but also the entire DA's office upon any evidence of a pattern or practice of intentional Brady violations.  

I doubt this will have any teeth because of the political structure in our country: the power tilting in favor of the governmental authorities pursuing law and order against the individual's rights enshrined in the Constitution.

Friday, October 9, 2015

Fourth Amendment in the age of surveillance

The Fourth Amendment has been under a massive attack in the post-911 age where the privacy of the U.S. citizens has been held to be secondary to public safety and counter-terrorism efforts. The unprecedented technological advances have made it a lot more possible than one could imagine. Surveillance, wiretapping, tracking devices, and more and more technological means of monitoring human activities are entering the landscape, prompting judges to look outside the box in analyzing the Fourth Amendment challenges. The determination whether a government action is in violation of the Fourth Amendment is a two-tiered analysis, 1) whether the challenged action by government is a search/seizure, 2) whether it is reasonable. The larger question of course is how much privacy can we legitimately expect in this world where all our actions, whether it is at home, at work or in the streets, are tracked by the government. We are being tracked and monitored when we browse on the internet, go shopping, eat dinner with our family, and go on vacations. All the credit cards and other plastics we carry have encoded chips with our personal information. Every activity we engage in is highly monitored. Our identity, our daily lives, our 'personal' information is no longer private, but public information, widely accessible to everyone, specifically the government.

Because the 'search' as a concept no longer has the traditional meaning, the judges have tried to delineate the contours of the new Fourth Amendment limitations. Significantly, in 2001 in Kyllo v. United States, 533 U.S. 27, the Rehnquist Court held that the use of a thermal-imaging device to track the heat emitting from the suspect's home was a 'search' within the Fourth Amendment that required a warrant. Despite the fact the device was placed in the public vantage point and was only tracking the heat not human activity emitting from home, it was rightfully considered a 'search.' It was very interesting, how the justices divided in a 5-4 opinion: Scalia was joined by Souter, Thomas, Ginsburg and Breyer for majority, while Stevens dissented with Rehnquist, O'Connor and Kennedy. Scalia urged that there was no difference between 'off-the-wall' and 'through-the-wall' technology, since both intruded upon the privacy of the home.

Flash forward to 2011, Scalia delivered the opinion of the Court in U.S. v. Jones, 132 S. Ct. 945, where the Court held that use of a GPS-tracking device on a vehicle  similar to a thermal-imaging device in Kyllo constituted a search within the Fourth Amendment that required a warrant. In fact, this was an easier case for the Court because the device was actually installed on the vehicle unlike the thermal-imaging device that was monitoring the home of Kyllo from the public space. Consequently, the Court held that this type of an encroachment would have been "considered a search within the meaning of the Amendment at the time it was adopted." Even the originalists, who tend to resort to the 'original' meaning  and purpose of the Constitution would agree with that. The Court hooked on the common-law trespass jurisprudence of the Fourth Amendment prior to the Katz holding (Katz v. United States 389 U.S. 347) to dispense with the argument by Government that Jones did not have "reasonable expectation of privacy" under the circumstances. The Court made it clear, what was objectionable was that the Government "physically occupied private property" for the purpose of obtaining information and that the Katz holding did not substitute but only supplemented the common-law trespass theory of Fourth Amendment protections.

In light of U.S. v. Jones the Court has recently held in Grady v. North Carolina, 575 U.S. __ (2015), No. 14-593 that the satellite-based monitoring of a registered sex offender was a search within the meaning of the Fourth Amendment and has to be reasonable. In that case North Carolina had demanded to install a tracking device on Grady, a convicted sex offender, without his consent to monitor his activities for the rest of his life. The Court easily dispensed with the unsupported position of the Government that this was not a search, but remanded it for further proceedings whether this could be found reasonable.

It seems, there are two tracks the U.S. Supreme Court has been following in grappling with these cases. Common-law trespass arguments that prohibit 'physical' intrusion by government into a protected area, and the 'reasonable expectation of privacy' arguments formulated by Katz. It is a flexible and useful approach. However, it lends uncertainty to the Fourth Amendment jurisprudence, because it leaves much room for inconsistent opinions by judges below and lack of confidence in how the U.S. Supreme Court will decide the next case. In this age, it would be vastly critical to have a certain amount of certainty when it comes to our privacy rights and the degree to which the Government can intrude upon our lives.

Wednesday, October 7, 2015

Outdated technology and reduced privacy

The California legislature has recently introduced a bill SB 249 (Hueso) on enhanced driver's licenses, that use "RFID" (radio frequency identification) CHIP technology to facilitate movement across california-mexican border. The goal is to reduce the border congestion and wait lines. However, as the critics have pointed out, the technology is outdated and unreliable because these chips are un-encrypted unlike the modern credit cards and passports. It not only opens doors for identity thieves but also privacy breaches by the government and employers, who may in addition decide to make them a job requirement. The significant fact is that the personal information stored in these licenses would be remotely accessible. The bill is couched in terms of giving false sense of security to those who apply for these licenses, something that should be widely challenged by privacy advocates.

With the modern technological advances used by the American government to facilitate the law enforcement and surveillance of citizens and non-citizens alike, we have long said goodbye to our privacy. The question is how far are we going to go with the open efforts by government to co-opt us into 'voluntary' compliance? 

For more see here and here.