Oklahoma Criminal Defense Blog

Crime Scene Investigation is the premise for several television shows.  Known as “CSI, ” the various shows take place in different cities with a different cast for each.  Prosecutors have noticed that some of the half-assed cases they have presented at trial have been found lacking by jurors who later referred to case presented in the courtroom to their experiences watching “CSI.” Naturally, such prosecutors resented any fault-finding, so they have blamed the jurors, said the jurors expected “too much.”

Prosecutors usually pay lip service to the legal standard required for their cases, the well-known burden of persuasion articulated as “beyond a reasonable doubt.”   But they really do not want to be held to that standard because it really is a high standard.  What they want is to give the jury as much evidence as they can get and fill in the blanks with argument and the opinions of police officers posing as experts derived from the police training schools geered to a maximum level of high school.  There may or may not be enough to prove a case beyond a reasonable doubt in a given case, but prosecutors always use emotion to carry them to the line or over the line when things get close.   When the jury doesn’t buy it, it’s time to blame the jury.

Now some prosecutors actually question veniremen during voir dire to qualify them as trial jurors, asking them what their expectations are in the way of evidence.  Of course, these prosecutors would never admit that the news and entertainment media are full-time tools for the prosecution.  Look at all the crime featured at every news cast on every television station.  Look at all the reality  “cop shows,” where the suspect is followed in a death-defying chase, wrestled to the ground, hand-cuffed, all in full view of the camera, and then led away to a voice-over says, “every suspect is presumed innocent.”   This makes a joke of  the instructions of law that viewer later receives when he takes his seat as a juror because it has been told repeatedly by the television that “this is just a formality, but you really know he is guilty as sin.”  So much for beginning with the presumption of innocence.   Thus has television for decades inculcated every viewer into believing crime is everywhere, criminals need to be punished even if the technicalities and courtroom niceties cannot always be complied with.  It has brought the average citizen along to be a bad-guy-getting cohort of the prosecution rather than a guardian of the system of justice.   Jurors thus cannot imagine themselves threatened by a justice system with a lowered burden of proof.

So now prosecutors don’t think they’re getting a fair shake from jurors who may hold their feet to the fire by demanding a thoroughly investigated case rather than a superficial one?  This is sour grapes from people who have had it their way for way too long.  If jurors had required more thorough evidence in all those death cases in Dallas, the prosecution would not have wrongfully convicted so many to send them to death row.

Only now with DNA evidence can the factually innocent person prove he is truly innocent.  It is sad to think how many years sloppy evidence has been putting people to death in the American justice system.   That’s what happens when a district attorney is in office too long and the average person thinks the number one thing to do is fight crime – not decide justice.  And prosecutors complain jurors are making them actually prove their case with the scientific tools available?   And prosecutors only rejoinder is that it is too much trouble for them, and, besides, why don’t the jurors just take their word for it?  That’s why we have judges and criminal defense lawyers, to keep the system honest.

There have been studies of this claimed “CSI effect.”  The New England Law Review in 2007 published the results of the study by Simon Cole and Rachel Dioso-Villa, entitled “CSI and Its Effects: Media Juries and the Burden of Proof.”  Their conclusions were that this claimed effect did not exist except in the minds of prosecutors who lost cases along with some stories in the press that were generated from prosecutors.

Another study was done by Eastern Michigan University criminologists.  They found the  “CSI effect” had no independent effect on jurors’ verdicts, although they did find that jurors who watched CSI were generally more interested in issues surrounding criminal justice and the law.

Maybe CSI should start showing the police routinely leaking stories before trials to help poison the jury pool with the prosecution’s version of the facts, the way they did with the French diplomat, Dominique Strauss-Kahn.   Then they could show how the police case collapsed, and how all this illustrated the extreme nature of the press assassination that had taken place upon the accused before a trial could even begin.  That would be realistic, but it would be outside the story line.  Given its viewership and the proliferation of shows in different cities, the CSI script appears to be successful as it is.

More Americans than ever before are seeking jobs as they are released from prison.  As public awareness grows that prisons are too crowded and stiffer sentences and increased enforcement of nonviolent crimes is costing the taxpayers too much, those being released carry their criminal histories in their search for jobs.

Nearly 65 million Americans have criminal records of an arrest or conviction, according to the National Law Project.   Many of them have left their criminal pasts behind them and others were convicted of minor crimes or of crimes that appear to have little relevance to the jobs they seek.

In the old days, employers had to search court records physically to do a background search of prospective employees.  Now, it’s easy via the Internet and the many vendors who offer screening and background checks at an affordable price.  Any job applicant can now be searched quickly and, unlike the old days, nationally.

Almost 90 percent of companies surveyed last year by the Society for Human Resources Management reported they conducted criminal background checks on some or all their job candidates.  This has made finding employment extremely difficult for millions.

Government guidelines demand that employers take into account the severity of the offense in question, the length of time that has passed since the offense and its relevance to job in question.   However. workers’ advocates claim many companies screen out anyone who has a hint of criminal activity in his or her background.  Sometimes a record of an arrest alone, with no conviction, is enough to be denied a job.

Employers say they are in a dilemma.  They say they can be sued if they fail to screen an employee who later harms someone.  And some regulations, such as in the securities industry, require only those with clean records be employed.    Employers want to be able to choose employees who, when all other things equal between candidates and when applicants are plentiful and jobs scarce, have no legal issues in their past.

There is no federal law that prohibits discrimination against someone with a criminal record, but the Equal Employment Opportunity Commission has set guidelines on how employers can use these records.  Since African-Americans, Hispanics and other minorities have higher rates of criminal convictions, a broad-brush policy that screens out anyone with a criminal history would necessarily discriminate against these groups and would be unlawful under Title VII of the Civil Rights Act of 1964.

The E.E.O.C. has filed several lawsuits involving background checks.  There are about 7 of them pending under Title VII now, but one brought against an employment agency named Peoplemark was dismissed by the court because the E.E.O.C. could not prove by expert testimony that the defendant has committed discrimination.  Private civil lawsuits have been lodged under the Fair Credit Reporting Act on the basis that employers must notify applicants rejected based on a consumer reporting agency criminal background check.  At least three of these have been settled, presumably with some payment resulting to the plaintiffs.

All kinds of companies have been sued over criminal background checks, including screening companies, transportation companies, a consulting firm, and even the Census Bureau.  The attorney general of the State of New York, where state law about background checks is stricter than the federal laws, has settled with some companies after investigating them for violations. The companies include Radio Shack ands ChoicePoint.

It is understandable why employers have been afraid to hire those with criminal records in light of past statistics that showed a third of those released from prison were returned within three years.  More recent studies of recidivism, however, are showing a change in trends.  Studies called “redemption research” have found the risk that a previous offender will be arrested again decreases substantially as time goes on and eventually it becomes no different from someone else of the same age with no criminal record.  For first time offenders, this point of redemption occurs between 7 and 10 years after the conviction, although it occurs a lot earlier for older first offenders.  It takes longer, sometimes significantly longer, for certain crimes and for multiple convictions.

Stephen Caracappa and Louis Eppolito were convicted three years before of acting as assassins for the Mafia while they were employed by New York Police Department.    Finally, [in March, 2009] they were sentenced in Brooklyn by U.S. District Court by Judge Jack Weinstein, Eppolito to life plus 100 years with a fine of $4.75 million, Caracappa to life plus 80 years and a fine of $4.25 million.

The judge said the two defendants likely had hidden assets to pay the fines.  One asset that will not be seized, however, is their police pensions.  Both men have been drawing tax-free disability pensions from the City of New York since they left the police department.  Caracappa retired in 1992 as a first-grade detective.  He receives $5,313 a month.  Eppolito retired in 1990 as a second-grade detective and receives a $3,896 per month in pension.

Both detectives, who joined the police force in 1969, retired before they were charged with anything, so their convictions do not interrupt their pensions from the city.  Although first reports of the detective’s corruption surfaced in 1979, they continued to receive promotions in the police department.  Implicated a  number of times, they were never charged until in this prosecution.  The pensions are not subject to seizure for the fines due the federal government.

Under New York law, pensions due former public employees are treated as property in trust for the employee. Efforts to exact forfeiture of such pensions as penalty for those convicted of corruption have failed in the past.  In 2009, 450 corrupt former officials, judges and police officers were reportedly still receiving pensions despite their convictions.

Caracappa, now 68 years old, is gaunt, with little color in his face.  Eppolito is 61 and doing better but still a wreck.   They will have little opportunity to spend their pensions in prison, but their families can.  The testimony of the families of some of their victims at the sentencing hearing did not prompt either of the men to give up their pensions.

Caracappa’s and Eppolito’s trial [in 2006?] lasted 3 weeks.  It was built around the testimony of Burton Kaplan, a wholesale garment dealer who was involved in a number of schemes with people in organized crime.  Jimmy Breslin wrote a book about Kaplan, entitled “The Good Rat, ” which describes how Caracappa, using a police computer, helped track down a man named Nicholas Guido for the Mafia.  Caracappa made a mistake, however, and gave a wrong address with the same name, who was soon shot to death.

Caracappa’s and Eppolito were charged with accepting $4,000 a month payments from the mob for spying, plus tens of thousands extra for the occasional kidnapping or murder.  They disclosed the identities of witnesses and leaked information, compromising investigations.  In their first mob killing in 1986, they used the siren on their unmarked car to pull over a jeweler on a Long Island road.  They told Israel Greenwald they needed him to stand in a lineup to investigate a traffic accident.  Then they drove him to a garage, where he was shot to death.

At their trial, the detectives were convicted of murdering a capo in the Gambino family capo in his Mercedes-Benz on the Belt Parkway in New York.  The jury also found them guilty of kidnaping a man, putting him in the trunk of their car, and delivering him to a mobster, who then tortured the man for hours before killing him.

Following the trial in which they were convicted of racketeering conspiracy, the trial judge issued but did not impose a life sentence for each detective.  The judge stated he believed the five-year statute of limitations had run on the crimes the defendants had committed and therefore overturned the convictions.  The most serious crimes of which the two detectives were accused occurred in Brooklyn, including murders, in the 1980s and 1990s, prosecutors used more recent and less serious crimes, such as money-laundering and dope distribution in Las Vegas, Nevada, in 2004-2005, to bring the earlier acts into the conspiracy net as an ongoing criminal enterprise.  The judge did not believe the conspiracy could include the earlier acts, but the United States Court of Appeals differed and reinstated the convictions.