Saturday, January 8, 2011

You Really Can't Trust Them, Any of Them, Really, You Can't

When we who toil in this small vinyard of criminal defense blogging write about how you can't trust the government, it's usually stories about cops or prosecutors or judges or alleged forensic experts we're telling.
Just this week, for instance, there was the cop in Las Vegas who "in a professional and compassionate way" (that's what the police department spokesperson said) made it his business to go to the emergency room where 13-year-old Takara Davis was in a medically induced coma while doctors tried to staunch the bleeding in her brain.  In his "professional and compassionate way," and since he couldn't actually give the citation requiring a court appearnce March 6 to the comatose girl, and careful not to do anything "deliberately insensitive," the cop decided he shouldn't intrude and that really, how important is a jaywalking ticket in the scheme of things turned and handed the ticket to Takara's mother.
Take that, bitch.  Teach you to let your kid walk home from school.
(h/t 8 News Now, via Elie Mystal at Above the Law, via Patrick at Popehat
* * *
But it's not only those involved in order enforcement.  Really, it's pretty much anyone the government has do anything.  (Important qualifier here.  Private business is no better.  See BP and the Gulf Oil Disaster.  Those who say if we'd just privatize everything would be hunky-dory live in their own fantasyland.)
Consider the business of demolishing a home.  Should be a simple chore, right.  The contractor takes the heavy equipment to the address on the piece of paper and KABOOM or something.
Alas, it seems it's too often the "or something."  Just ask Andre Hall of Pittsburgh.
He bought a foreclosed home in November.  He'd started the rehab work.  He was getting set to move in with his girlfriend and her five children in three weeks.  But on Monday, when he returned to get back at it.  Ooops.  No house.
Sure, there'd been a demolition order.  But that was rescinded November 3.  The contractor was properly there to take down the house next to Hall's.  And you know, as long as they were demolishing.  Amazingly enough, they restrained the urge to flatten the entire block.
The city promptly took ducked responsibility.  (According to the Pittsburgh Tribune Review, the city said that it won't pay for the demolition of Hall's house.  It didn't say whether Hall will be asked to pay the bill.)
Of course, this is a one of a kind sort of thing.  You know, it an odd event that there was never anything like before.  Except, well, here's Brett Michael Dykes at Yahoo News.
Experiences like Hall's are distressingly common. There's the homeowner in Carrollton, Georgia, who saw the house built by his father flattened by careless city contractors who'd been following a faulty GPS locator. There was the woman in Denton, Texas, who was working in her garden as a demolition crew, mistaking her lot for a condemned property across the street, gouged an enormous hole into her front yard, which promptly claimed her porch, and rendered the remainder of the house structurally unstable. And there's the Jackson, Miss., woman whose home was flattened after pranksters took a sign erected to condemn an adjacent vacant lot and placed it in front of her home.
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Still, it wouldn't be fair to focus only on the bad apples.  Down in Texas on Friday the Forensic Science Commission finally (and I have to say surprisingly) heard actual testimony from the scientists who know something about fire and how things burn and actual evidence of arson.  What they said (which is what they've been saying all along) is that it's impossible to know for sure what caused the fire that burned up Cameron Todd Willingham's kids and got him executed.  It's impossible to know for sure because the investigation - even by the standards of the day - was botched.
But if they can't know for sure, they can give a good guess.  Electric short circuit.  Not in the wall (which is rarely where electrical fires start) but in something plugged into an outlet.  You know, the things the fire investigators tossed out without looking at so there's no checking.
Oh, and the actual experts who know whereof they speak also said that there is no evidence, none, zippo, that it was an arson.  They didn't say it's impossible, just that there's no evidence of it.  Everything the fire investigators pointed to absolutely does not support the claim.
Fear not stalwart supporters of Willingham's guilt in spite of the total lack of evidence.  John Bradley, appointed by Governor Perry to ensure that there would be a whitewash did, according to Grits, a thorough job of cross-examination. 
One thing I didn't see reported, but which definitely affected the dynamic in the room, was that the crowd was restless, at times even modestly heckling Chairman John Bradley as he interrogated the visiting scientists in a confrontational, sometimes demeaning fashion. At one point a woman I didn't know sitting two seats down from me exclaimed audibly, "Who does he think he is?" At another point, Bradley was trotting out some (easily rebutted) red herring in response to claims by John DeHaan, one of the top minds in the fire science field who literally "wrote the book" on the topic, “Kirk’s Fire Investigation,” used to train arson investigators since the 1980s (and during the period of the Willis and Willingham cases). As Bradley droned on, an exasperated onlooker in the back exclaimed, "Jesus Christ!," causing the crowd to laugh and twitter. Several times outright laughter broke out, and not always at intentional jokes but also at disingenuous rhetorical ploys by the chair. All that to say, there was a tension in the room from the outset that continued and built throughout the day, driven by the chair's bullying tactics and the collective backbone of the experts and several commissioners who insisted on focusing on the science.  Bradley, instead, clearly wanted to debate Willingham's guilt or innocence. The scientists, to their credit (and the crowd's approbation), wouldn't be baited and simply refused to go there.

Speaking of Bradley, he seemed quite animated by the exchanges with experts, even as they adroitly dismissed his main points of attack. One wag suggested he seemed to relish for once playing the role of defense attorney, trying to inject "reasonable doubt" into the unanimous testimony by fire scientists before the commission. He could have just let them speak and allow the scientists on the commission to ask the questions (the time allotted for questioning each expert was limited), but he dominated much of the discussion, asking more questions and taking up more time than any of the scientists on the panel, who otherwise I thought did a great job. They were engaged, very prepared, their questions were probing, and best of all (from my perspective) they stood up to the chair and insisted on bringing the discussion back to questions of science and ethical responsibility. 
Anyway, the state brought in its own expert: Ed Salazar, a lawyer.  His position:  The arson report prepared at the time could have been more thorough and detailed.  And maybe there was a mistake or two.  But arson is a judgment call, and in my professional judgment as a lawyer [OK, I made that part up], this was the right call.  After all, there are the pour patterns and the burned carpet and even by today's standards that's proof of arson.
You know that old saw about not sending a boy to do a man's job.  Here's a related one.  The lawyer can jump up and down all he wants, but when he's talking shit, everyone can tell.
Eventually, the Commission is supposed to issue a report.  But before then, let's think about Texas (your state, too, but this all happening in the land of the bluebonnets (the state flower, don't you know).  They've been doing this sort of shoddy fire investigation for years.  The state fire marshal stands behind it.  Willingham got executed.  At least one man, Ernest Willis, had his conviction reversed because the same sort of shoddy evidence was used to convict him.
So here's the question?  If you're the state Fire Marshal, do you reopen maybe dozens or hundreds of thousands of cases to figure out if you've got innocent people convicted of crimes?  That's what Commissioner Sarah Kerrigan wanted to know.  Here's Dave Mann in The Texas Observer.
Kerrigan asked if the Fire Marshal’s office—in light of recent discoveries in the field—had gone back to examine the thousands of older cases it investigated with what now appears outdated knowledge.

This is the key question. As I’ve written before, nothing can be done about the Willingham case now. What matters is whether lessons gleaned from the case can help free anyone wrongly convicted of arson. There are 750 people in Texas prisons on arson convictions and many could be innocent.

Salazar wouldn’t answer the question directly. He said he hoped any investigator who became aware of a mistake would come forward.

But it became clear that the answer to Kerrigan’s question was no, despite the disturbing implication that hundreds of people may have been wrongly convicted of arson, the Fire Marshal’s office hasn’t bothered to review its case files.
I'm getting to be a broken record here, but you know, we make mistakes.  Even good faith one.  Texas keeps finding that it's got people locked up forever for crimes they didn't commit.  (See, most recently, the sad story of Cornelius Dupree, just released after 30 years for a rape and robbery he didn't commit.  See here and here.)  So do other states.
Don't you think someone in the government ought to care, ought to say, let's actively look for mistakes.  Even when we're sure.  Cause we might be wrong.
And what's the harm in being not just sure, but right?


  1. Don't you think someone in the government ought to care, ought to say, let's actively look for mistakes.

    Like, for instance, President Barack Hussein Obama II, AKA The Anointed One, who must have the very best of reasons not to lend the considerable influence of his Oval Office to The Innocence Project or some similar organization. Just think of the results if the Department of Homeland Security were turned loose on cases like this. We'd have Guantanamo filled to overflowing with both local as well as foreign terrorists.

    Seriously, one thing I actually hoped The Anointed One would do was restore a few of our civil rights and make some dent in out injustice system. So far, no dice.

  2. Hey, his administration gave us the right to be porn stars or sexual assault victims at airports.