One such case was in Oakland, California.  It arose from the death of Antonio Ramirez.  A minor named Felix was the person charged with murder. After Ramirez was shot 7 times, police arrested Felix, 16 years old at the time.   It was late, the police isolated him without a lawyer and refused his requests for his mother.  The police hammered on him until he started telling them what he thought they wanted to hear.   That is the usual and expected progression given enough time to wear down the suspect, as the police know.

When police asked for a diagram of the crime scene, Felix’s efforts were so inaccurate the police never showed his product to the jury.  He told police he went one direction to escape, but they had to correct him.  When he described his escape route without mentioning an alley located there, the police added the alley, so he adopted it into his statement.

When the police asked him about the gun, Felix said he didn’t have a gun.  The interrogators went ballistic, of course, and started yelling at him. At this point, he was definitely feeling threatened, so he made up a detail that would later help him.  He told them he gave the gun to his grandfather.  As was later proved, both his grandfathers were deceased.

Once gone through, the story was ready for the police to present.  They taped it, sure they had fashioned a winner.  But the police had forgetten to feed one critical detail to Felix.  When he read the complaint in court days later, he learned for the first time the date of the crime to which he had confessed.  On that day, the day Antonio Ramirez was shot to death, Felix had a perfect alibi.  He had been locked up in juvenile detention.

Even with that alibi, however, his criminal defense lawyer was afraid to go to trial.  That’s how powerful confessions, however trumped up, are to a jury.  Juries simply cannot believe someone would confess to a crime they did not commit.  Even judges do not want to believe someone would confess to something they did not do.  The many trumped trials during the Stalin purge trials in the Soviet Union all featured confessions.  They were all coerced, yet even those close to the events believed the condemned never would have confessed unless they were guilty.  At least they thought that until their turn came to enter the Stalin show trial machine, they confessed falsely, and were executed.

Psychological studies show they do, however.  Especially children, the mentally ill and mentally retarded do, as well as those who are drunk and high.  All such people share a vulnerability to coercion and suggestion.  Many are eager to propitiate authority figures, many are impulsive.  Just as Felix did, children often believe they will be put in jail if they continue to resist the importunities of police and believe they will get to go home if they cooperate with the police.  This is the opposite of what a mature adult would expect, so it runs counter to what jurors expect anyone else to believe.

The rate of crime on Indian land is high.  Statistics shows the following:  Indian reservations have violent crime rates exceeding 2 ½ times the national average.  Indian women are 10 times more likely to be murdered than non-Indians and are sexually assaulted at 4 times the national average.

These crimes are investigated by the tribes and the F.B.I., and they are sent to the Department of Justice for prosecution.  That means the local U.S. Attorney’s offices prosecute them, but they are filing charges in only half the murder cases sent to them and only one-third of the sexual assault cases.  The tribes can’t understand why.

In 2011, federal prosecutors declined to file over half the most serious crimes of all types on Indian reservations.  They declined 61 percent of sexual abuse of children cases and declined 65 percent of rape cases.    But contrast, the Justice Department declined only 20 percent of drug trafficking charges for the country as a whole.

The F.B.I. is notoriously slow and painstaking in its investigation of crimes.  Any experienced criminal defense attorney will tell you that.  But as the years tick past while matters are “under investigation,” no one from the reservation has been informed of anything.  One problem may be the quality of investigations by the tribe police because federal prosecutors are much more selective than state prosecutors in accepting cases to file.  But it is the F.B.I. that is investigating many or most of these cases, so that does not explain the startling lack of prosecutions.  A former tribal judge has complained that U.S. Attorneys declined to file a rape case of a 13 year old girl by a 31-year-old man, even though two family members interrupted the attack and there was a DNA match.  Neither did the U.S. Attorneys offer any explanation why no charges were filed.  After the U.S. Attorney declined to file, the man was eventually prosecuted in tribal court but received only a year in jail.

Matters have caused so much outrage in Indian Country that one family has filed a lawsuit in Montana to complain about the federal government’s failures to enforce the law.  The  family of Steven Bearcrane has brought an action in U.S. District Court in Montana, alleging lack of due process and lack of equal protection under that laws.

The family of Steven Bearcrane was so incensed that the federal authorities did nothing to prosecute the death of Steven Bearclaw on the Crow Reservation that they brought a lawsuit in federal court against the FBI and the U.S. Attorney’s office and a couple of individuals.  They filed it interestingly under the Administrative Procedure Act rather than as a civil rights lawsuit, and claimed the U.S. Attorney’s office in South Dakota had followed “a pattern and practice of declining prosecutions in cases in which the victims of those crimes are North Americans.”

The district court agreed that precedent had established that law enforcement officers cannot exercise their discretion in a discriminatory fashion.  However, upon several legal bases, the district court dismissed the claims that was based on due process of law as to the FBI and the U.S. Attorney’s office, keeping alive only one claim against one Matthew Oravec.  The point here is not so much whether they prevail in their lawsuit but the situation is so unsatisfactory that they feel the need to sue the authorities for protection.

Some reports put the number of convicted state and federal prisoners who are 65 or older at growing between 2007 and 2010 at 94 times the rate of the overall prison population.  The number of sentenced prisoners 55 years or older grew at six times the rate of the overall prison population between 1995 and 2010.  Commentators have reminded us that prisons were never designed to be geriatric facilities, and they simply do not have adequate facilities for the aged prisoners.  Yet prisons are operating what amounts to old age homes behind bars.

Many of today’s prisoners will not get out of prison, thanks to the trend toward long sentences, until they are very old.  Some, of course, will never get out, but they will live longer than prisoners in earlier years.  Nearly one in ten prisoners in state prisons, more precisely 9.6 percent,  is serving a life sentence. An additional 11.2 percent of state prisoners have sentences longer than 20 years.

A study of twenty prisons of 20 prisons in nine states interviewed prison officials, corrections and gerontology experts, and the prisoners. The study found officials scrambling to respond to the needs and vulnerabilities of the older prisoners.

Yet even with these added burdens, the prisons are experiencing shrinking budgets.
They have other obstacles in old prison architecture that is not designed for common age-related disabilities.   Prison officials also must deal with limited medical staff and medical facilities, lack of planning and a paucity of support from elected officials.  And prison officials must deal with all these issues in the context of meeting the press of day-to-day operations.

Serving time in prison can be hard for anyone, but it is particularly challenging for the growing number of older prisoners who are frail, have mobility, hearing, and vision impairments, and are suffering chronic, disabling, and terminal illnesses or diminishing cognitive capacities.

Prison facilities, rules, and customs were created with younger inmates in mind, and they can pose special hardships for older inmates. Walking a long distance to the dining hall, climbing up to a top bunk, or even standing for count can be virtually impossible for some older prisoners. Incontinence and dementia present special problems.  Prisons with high proportions of elderly prisoners have reported staff behavior has had to adapt to the realities of aging bodies and minds.  For instance, staff who work with the elderly know it makes no sense to yell at a prisoner who doesn’t understand what is being yelled.  Older prisoners have to be given more leeway when it comes to enforcing the rules.

Unless there is some moderation to the policies that tout being especially “tough on crime,” the number of aging prisoners will continue to grow.   These policies include long mandatory minimum sentences, increasing life sentences, and reduced opportunities for parole. These policies keeps many older prisoners remain incarcerated even though they are too old and infirm to threaten public safety if released.

A collection of statistics gives some particularity to these descriptions:  One in ten state prisoners is serving a life sentence;  fifteen percent of state prisoners age 61 or older have been in prison more than 20 years;  Eleven percent of federal prisoners age 51 or older are serving sentences ranging from 30 years to life, and there is no federal parole; in Florida, the 16 percent of the prison population 50 years or over accounts for 40.1 percent of all episodes of medical care and 47.9 percent of all hospital days.

Some ideas for addressing these issues including a review of sentencing and release policies to determine which could be modified to reduce the growing population of older prisoners without risking public safety.  Knowledgeable critics have proposed other ideas as well including developing a comprehensive plans for housing, medical care, and programs for the current and projected populations of older prisoners and modifying prison rules that impose unnecessary hardship on older inmates.

Only later did the two lobbyists learn that the company was a fake and an F.B.I. front.  This fake company was part of the F.B.I.’s wider operation that has resulted in indictments handed up a year ago against three people, including the lobbyist whom the F.B.I. agents retained for the fake company.  Accused are the lobbyist, Andrew Skeith, former Oklahoma Senate President Pro Tem Mike Morgan and prominent and very well respected Oklahoma City attorney, Martin Stringer.  Their charges are scheduled for jury trial in Oklahoma City federal court this spring.  They are charged with public corruption and trying to bribe a public official in a 63-count indictment that alleges conspiracy, extortion, bribery and mail fraud.

While the F.B.I. agents were trying to hire the lobbyists for the fake company, they made  inquiry to the Oklahoma Ethics Commission about the ethical permissibility of a company paying a lobbyist to make a campaign contribution.  They were told that such a payment could not be earmarked for a certain campaign.  And indeed, the lobbyist that Road Safety International hired did make a campaign contribution to a legislator who was serving as chairman of the House Transportation subcommittee.  The legislator confirmed he received the contribution, but since the lobbyist represented multiple companies, the legislator did not know where the contribution came from.

Apparently the F.B.I. wanted the lobbyists or the lobbyists’ clients to commit a crime so the F.B.I. could prosecute them.  Of course, the F.B.I. would say they only wanted to witness crimes that these individuals were otherwise inclined to commit.  But sometimes the line is close.  The drift into entrapment, the inviting of a crime to be committed from someone not otherwise disposed to committing the crime, is not rare for this kind of undercover operation.

If too-ambitious agents are insufficiently supervised, they can create crime, not just observe it.  Entrapment is recognized in criminal defense law and in common parlance.  Entrapment is available to a defendant at trial as an affirmative defense to the charge.  The outcome of a trial depends, as always, on the facts presented at trial.  But those facts are very rarely “just the facts.”  The facts are usually couched in circumstance, bound up in nuance, obscured by shades, pulled by spin, and lost by memory, real and contrived.   The point is that having an affirmative defense is good, but it is rarely a magic wand because of all the evidence launched in the government’s case.

Of course those forces and degradations appear nowhere to be found by an observer watching the no-nonsense law enforcement officer testify from the witness stand as he rolls out a seamless narrative in short syllables, practiced manner and never the slightest hesitation.  Trials like these, prosecuting “public corruption” are usually based on wide-open statutes that permit very much interpretation, including a lot of innocent conduct.  I have no idea of any of the facts in this case, not the slightest knowledge of the quality of evidence, but I have seen federal prosecutions based on laws that are so frighteningly broad that they belong in a Kafka tale rather than in the courts of this country.

Sometimes wiser heads in the federal prosecution hierarchy prevail, as they did this week when they announced they would not pursue Lance Armstrong any further.  After spending $50 million in investigating the use of steroids in sports and obtaining one bare conviction against Barry Bonds (not for steroid use but for lying to the grand jury), the government has called it quits.  One baseball pitcher is still waiting trial.

Just think what they could have done with a little more money, say $100 million.  If only those 11 million people across the nation who are out of work would just donate that additional $100 million to clean up sports. That way we could keep our priorities straight.

On the first day of this month, the Department of Corrections implemented a new statute, HB 2131, that released on GPS monitoring those inmates convicted of non-violent crimes who were serving a sentence of less than five years and have only ninety days of their sentence left to serve.  The only recent change in the law is that it makes eligible those who have ninety days left on their sentences rather than 180 days.

The largest for-profit provider of halfway houses in the state of Oklahoma was so concerned about losing this business that they met with officials of the Department of Corrections, then met with the governor and the Speaker of the House, who was the author of HB 2131.  Avalon Correctional Services explained their concern, with a straight face as just a concern for public safety.  Speaker Steele explained that Avalon met with him just to be sure he understood how good their programs are.

The company has seen a big drop in its halfway house populations.  Their halfway house in Tulsa was only 60 percent to capacity this October versus 97 of capacity in October, 2010.  Since Department of Corrections pays Avalon $33.75 per day per inmate, the total drop could reach $120,000 per month for only one of the Avalon facilities.

The Department of Corrections claims to have 10 years of studies that show this type of release works.  The Department’s director, Justin Jones, said he got an avalanche of telephone calls for people concerned that hundreds of inmates would be released under the new law.  But, in fact, fewer than 170 inmates were released early for the GPS monitoring.

The new law is aimed at reducing the terrific costs of housing inmates in times of budget shortfalls.  It did not change who is eligible; it just changed time frame of remaining sentence from 180 days to 90 days.

The Department of Corrections claims this program has a 90 percent success rate for women and an 87 percent success rate for male inmates.   This is better than any of the specialty programs, like drug court or community sentencing, both of which are excellent programs with excellent track records.

Avalon helped address the state’s budget shortfalls two years ago when it agreed to accept a 5 ½ percent decrease in the per diem rate Department of Corrections paid for halfway house occupants.   The department budget fell from $503 million in 2010 to $462 this year.

The EDRs was designed to collect data so federal safety standards could be improved, but more and more now, the EDRs have become exhibits in the courtroom when a crime is alleged or serious accident occurs.

New rules for EDRs will take effect next year from the National Highway Traffic Safety Administration.  The new regulations will require the devices record and preserve a certain minimum of crash data, fifteen categories of data, including pre-crash speed, engine throttle, changes in forward velocity and the deployment of the airbags.  The regulations will not require the installation of EDRs

Judges in the many various state and federal courts vary in their willingness to allow electronic devices into evidence. Identification of the device, verifications and chain of custody can tip the decision on admissibility.  Often judges may be less willing to admit something as the judge is less familiar with it, perhaps arguably either afraid of it or enraptured by it.

Such pieces of electronic data should be used more in the courtroom to give evidence of the facts, according to their advocates.  They want to make it easier to authenticate such electronic articles, which are sometimes challenged in the courtroom because they do not conform to the rules of evidence.  Of course, the advocates are willing to change the rules of evidence to make it easier to get them into evidence.

Not so fast, say the skeptics.   These little electronic treasures may abound in data, but what do we know about how that data got there, and therefore, how reliable is that data?  They should be treated as hearsay evidence and excluded from evidence as a default unless their reliability can be shown.

These little jewels are not infallible, passive receptacles of fact and incorruptible testifiers to those facts, say the skeptics.  Instead, they view electronic devices as fundamentally manipulable to the designer’s wishes.  Whatever the creator put in the device, so it will carry a bias forever.  The creator of the device makes it subject to certain software that modifies, colors, and skews production of data according to some agenda.  Without complete disclosure of that software, no one can know that agenda or what data is being presented.  Usually, that is where a wall goes up, and the owners/designers of the electronic device claims propriety secrecy.  Certainly, that is common in breath analysis machines when criminal defense lawyers demand how certain results are produced.  Prosecutors (usually hiding behind the manufacturers) never want to produce such explanations, and only very rarely do courts demand they produce them.

But public safety is not the reason a lot of these cameras are installed.  It’s revenue.  The cameras are installed by vendors who sell them to municipalities.  However, the cameras cost to install, so the camera vendors make this deal with the cities: let us install the cameras for free and we will split the revenues derived in a 50-50 split.  The cities thus pay nothing and get pure profit.  So profit can be the dominating motive for installation of the cameras.

Some cities have allowed violators to avoid a conviction for running the red light if the drivers will complete driving school. Obviously, the idea is to better educate drivers and inspire safety in the city’s drivers.  But when the city offered that driving school option in Tempe, Arizona, the camera vendor, a company named Redflex, filed suit against the city for $1.3 million for breach of its contract.

Conventional wisdom about running traffic lights is that a longer yellow light is a factor that can make things safer.  But longer yellow lights produce fewer violations and less revenue.   So Bell Gardens, California, has just agreed to a contract with Redflex that penalizes the city if it ever changes the length of the yellow lights.  Glassboro, N.J. shortened its lights as well, and, when the mayor of a neighboring municipality got a ticket for running a red light, the fact came to light that Glassboro had shortened their yellow lights to less than the 4 second minimum recommended by the National Highway Traffic Safety Administration.

The downturn in the economy has driven municipal officers to seek more revenue.  Understanding that motive does not make it okay for municipal officials to disregard the best interests of their citizens.  It may be a trend, as New York City and Washington, D.C. intend to increase the number of their surveillance cameras.  But maybe it’s not a trend, since nine states and several cities, including Houston and Los Angeles, have prohibited any of these cameras.

Cellini is a power broker in Illinois state government.  His investment company, Capri,  made $220 million doing business with the state Teacher’s Retirement System.  And that connection is what allegedly brought him into a scheme to extort a campaign contribution to the Blagojevich campaign coffers.  The Blagojevich team knew how important it was for Cellini to maintain his dealings with Teacher’s Retirement System.

Cellini is being prosecuted for delivering a message to someone already given the message, Hollywood producer Thomas Rosenberg.  Rosenberg had an investment deal with the Teacher’s Retirement System until he got a visit from Antoin Rezko and Christopher Kelly.  Rezko and Kelly told Rosenberg his deal was dead unless made a $1.5 million contribution to Blagojevich.
Rosenberg then turned to an old friend whom he figured could enlighten and advise him.  He turned to Cellini.  But Cellini told him the only way to get his deal done was to make the contribution.  The government accuses Cellini of conspiracy in that extortion scheme, but the evidence so far described omits a critical link.  Granted Cellini had a motive to protect his connection with the Teacher’s Retirement, but Cellini did not deliver any bribe, threat, or (arguably) any message.  Rosenberg plainly said on cross examination by Cellin’s criminal defense lawyer that Cellini never asked for the contribution.  What Rosenberg said could have been simply a statement of fact, that Cellini believed, his opinion was that Rosenberg’s deal was finished unless he made the contribution.

But the government plugged that hole with the testimony of an inside witness.  Stuart Levine was charged and pled guilty to being part of this conspiracy.  He testified that Cellini agreed to approach Rosenberg, and that both Levine and Cellini were doing so to protect their influence with the Teacher’s Retirement System.  Certainly Levine’s testimony is suspect because he is cooperating with the government to lessen his sentences, so he has a motive to lie, fudge, create or enhance his testimony to make himself more valuable to the government.  As usual, critical facts in a trial hinge on the credibility of a witness.

No one was convicted: All acquittals and mistrials.  The main target, Milton McGregor, was found not guilty on three counts and got a hung jury on 14 counts including one count of conspiracy.  (There is always a conspiracy count in federal court, at least when there has been an extensive investigation.)   McGregor is the multimillionaire owner of one of the largest casino complexes (including a greyhound racetrack) in the country name VictoryLand.   He was tried with two serving state senators, four former state senators, and four other people.

Two defendants, State Senator Quinton Ross and VictoryLand lobbyist Bob Geddie, were completely cleared by the jury’s verdict.   The jury could not reach a verdict on 33 other counts, so the government could seek a new trial for the seven remaining defendants, who include Senator Harri Anne Smith, former Senators Larry Means and Jim Preuitt, and McGregor.

All of this arose from some new gambling machines that were proposed for use in the casinos, called electronic bingo machines.  They looked like slot machines and were common for some time around the state.  However, the Governor Bob Riley declared them illegal, and several judges agreed with him, so legalizing them was proposed in the Alabama legislature. That is where the F.B.I. investigation took place.

As the casino-sponsored bill to legalize the machines was debated in the legislature, rumors floated of a federal investigation of money offered or paid for votes in favor of the new machines.   The F.B.I. made surprise visits to some of the legislators.  Indeed, when the 65-page indictment was unsealed last year, two of those originally charged pled guilty and testified at trial for the government as “cooperating witnesses.”  They and the recorded telephone conversations were the sum and substance of the government’s case.  Much discussion of money, contributions, promises, and deals were offered into evidence, but the criminal defense lawyers argued none of that constituted bribery.  The cooperating witnesses gave their opinions that bribery was implied or understood, but all of it fell short.  The jury obviously looked past all the theater of the government’s display, looked into all the mountains of evidence, and found it unpersuasive when held to the burden that is required in American courts: beyond a reasonable doubt.

The government’s case fell short of connecting McGregor to any discussion of money or votes.  And the government’s case was not helped by tape-recordings from one of its own witnesses, Senator Scott Beason.   One of the informant legislators, he referred on one of his tapes referring to customers of a gambling hall in a predominantly black counties as “aborigines.” Beason also recorded himself talking to Republican colleagues about how passage of the bill could hurt Republicans because the bill wouldn’t take effect unless approved by voters in the November election. He argued having the issue on the ballot would bring out more black voters, who traditionally favor Democratic candidates.

On a retrial, the government is sure to omit those tapes from the jury.  But jurors in that case will also know that legislators are constantly raising money, swapping favors, and trading deals on legislation on a daily basis, and the jury will still need evidence of bribery.

The Court recognized decades of research that shows the traditional procedures used for lineups have problems.  The result has been that innocent people convicted and sent to prison.   The problem has been that police, often unconsciously, give subtle hints as to which person the witness should identify.  These hints never show up in any record, so they cannot be questioned.  Both the police and the crime witness even deny that such hints exist, yet they do exist, and they have influenced the identifications of suspects in court. When that identification is the sole or strongest evidence of a suspect’s guilt, the flawed identification can be the basis for the conviction of an innocent person.

Finally there are consequences for police who refuse or fail to follow proper procedures. Courts have always been reluctant before to sanction such careless or deliberate conduct by the police.  New Jersey is one of the fifty states, but there are more than 16,000 law enforcement agencies in the country that deal with suspect identification.  Many remain skeptical about the research that faults their present procedures.  Many resent the suggestion that they could be having an affect on the accuracy of the responses of witnesses in the identification.  This resentment is no less because, research shows, the influence is unintentional.

Most police identifications are conducted the same way they have been for years and years.  Most use photos rather than an array of actual persons because photos are much easier to assemble.  The standard requirement is that all the suspect photos are supposed to be of similar race, facial hair, age so as not to make one of them obviously prominent.

More than 2,000 scientific studies have shown problems with witness accounts.  Add to that at least 190 people who were convicted by eyewitness testimony and later proved to be wrongly convicted by that gold standard of science, DNA evidence.   Those who have studied the field estimate that there are about 75,000 witness identifications each year, and some studies suggest about a third are incorrect.

Larger police departments are taking the lead in adopting the new procedures which the the New Jersey court has mandated in its jurisdiction.  In Dallas, elaborate precautions are taken to keep out any taint that might cause a question later in the courtroom or on appeal.  Witnesses are sent to a special unit of the police department that is dedicated to lineups and the detectives there have no other relationship to the case or the witnesses.  The witnesses are read instructions and shown the photos by specially trained police officers.  The photos are shown one at a time, rather than all at once.  At each photo, the witness is asked to indicate how confident he or she is about their reaction to that photo.  The entire process is recorded by videotape in case any questions later arise during the judicial process about what happened in that identification.

Naturally, the police in Dallas resented new procedures at first.  They felt their integrity was being challenged.  But after thorough training that included explanations of memory functions and the psychology behind the dynamics, the procedures began to gain some believers in the police department.   Veteran detectives notices over the years that during lineups that police gave small facial cues when a witness picked a suspect the police had in mind.

Police departments rarely make any changes until wrongful convictions become an issue, and there have been many DNA exonerations of death row inmates from convictions in Dallas.

Denver Police Department is another one that has adopted some of the new procedures about six years ago.  When they really looked at the procedures they were using, they concluded their practices were suggestive.  They have found that the new procedures help, rather than hurt, their investigations.  Only 15 miles away in Aurora, Colorado, police are doing things the same old way.  Specifics may be hard to come by since there are is no written policy on lineups.  They do not follow the National Justice Institute guidelines because state law does not require them to do so.  Ordinarily, the investigating officer in the case conducts the lineup, and it is important to him to see that the witnesses are careful in their identifications.  However, no particular consistent steps are taken to prevent influencing the identification.

For years judges have disallowed evidence of studies that explained these problems in lineups, so the juries never heard any evidence that offered the least question to the emotionally powerful testimony of an eyewitness.  The juries never got a chance to see anything behind that testimony, what did or might have suggested or tainted that testimony that was now so positive and unshakable in the courtroom.