Tuesday, April 28, 2009

Profiling the Drug Wars

Wouldn't it be a drag to get arrested for something you did not do based solely on the word of a lying, mentally ill drug addict?

That's what happened to Regina Kelly in rural Hearne, Texas in 2000. Ensnared in a mass arrest of suspected drug dealers at her housing project, the young single mother was charged with selling drugs in a school zone. Despite her insistence that she was innocent, her court-appointed attorney pressured her to accept a plea bargain to avoid many years in prison and the loss of her children. With no criminal record and no drugs found on or near her, she refused.

Instead, with the help of the American Civil Liberties Union she filed a class action suit, Regina Kelly v. John Paschall. Since the case settled four years ago, the local drug task force has been disbanded.

As it turns out, bogus statements by "snitches" trying to curry favor with police are a leading cause of wrongful convictions (along with faulty eyewitness evidence and wrongful confessions). In the U.S. Drug Wars, this especially affects those who, like Kelly, are poor and Black. Texas seems like an unlikely leader in the campaign to reform such practices. But, prompted by the Hearne case and another mass drug arrest the year before in Tulia, the Lone Star State became the first in the United States to enact legislation requiring that the statements of confidential informants be corroborated by other evidence.

The case was reported by PBS' cutting-edge Frontline back in June 2004; a similar documentary was made about the more infamous bust in Tulia, Texas. But now, a fictionalized version of Kelly's story is set to reach a broader, mainstream audience. Co-director Bill Haney says that when he heard about Kelly's case on National Public Radio as he was driving along, it so moved him that he pulled his car over to the side of the road and cried.

In American Violet, "Dee Roberts" (Nicole Beharie) is the plaintiff in a class-action case over racial discrimination in drug enforcement. Tim Blake Nelson plays David Cohen, the ACLU lawyer who sues racist district attorney Calvin Beckett (Michael O’Keefe) on her behalf.

Kelly says the film is "90 percent accurate." The depositions, the courtroom scene in which she fights to retain custody of her children, and many other scenes are word-for-word accounts.

"I'm hoping that somehow, this film is going to get the message out there for someone to look in on this town and other towns that go through the same thing that we go through," Kelly told the Chicago Tribune. "Because something has to happen, and this has to stop."

With this film, Kelly may get her wish. Like Clint Eastwood's magnificent The Changeling (see my review HERE), this tale of a defiant woman's struggle against corrupt law enforcement strikes a universal chord. But unlike The Changeling, American Violet also addresses present-day criminal justice themes of racial profiling and coerced plea bargaining.

Get out and catch it.

The L.A. Times has an informative review HERE. Grits for Breakfast has compiled a list of links to other media reviews. For more information on the true case, see Kelly's website. Or, you can watch Kelly on YouTube. My prior posts on confidential informants are HERE.

Friday, April 17, 2009

DNA science on trial

My least-favorite crime show is CSI. And my least-favorite line in that show is "The science never lies." Talk about a whopper!

With all of the revelations lately about faulty science -- from handwriting identification to fingerprint evidence, ballistics, arson investigation, and even bite marks -- it is reassuring that at least one type of scientific evidence rests on a solid foundation.

That's DNA, of course. After all, as I have heard DNA experts testify many times in court, the likelihood of a wrong DNA match is something along the lines of one in 1.1 million, or less.

But what if that's just one way to run the math? What if you can run it another way, and the odds of a wrong match rise to a whopping one in three? And what if the FBI knows this, and is working feverishly to keep such information hidden from the public and out of the courts?

That is the alarming cover story by Pulitzer Prize-winning author Edward Humes in this month's California Lawyer magazine.

As Humes cogently explains, the problem is not so much with the matching of crime scene DNA to a known suspect. The problem is with the cold cases, when a database spits out a match to an offender who is not already identified as a suspect. The larger the databases get, the greater the odds of a wrong match by pure chance. Especially if the crime scene DNA is degraded, and fewer than the ideal 13 loci (DNA locations) are available for comparison.

This problem was confirmed by a technician at a DNA lab in Arizona back in 2001. Running an experiment by comparing all 60,000 offenders in her state's database, she was shocked to find about 90 coincidental matches. The FBI, unhappy over her disclosure, "began threatening sanctions against crime labs that shared such information with anyone outside of law enforcement," Humes reports.

Experts maintain that wrong matches are becoming more and more inevitable, given the increasing sizes of DNA databases. In California, for example, with the third-largest DNA databank in the world, a new policy of profiling everyone arrested for -- not just convicted of -- a felony is enlarging the database by 35,000 profiles per month.

Donald Kennedy, a former Food and Drug Commissioner who contributed to the recent National Research Council report critiquing the management of government forensic labs, confirmed that the science "is being shut out of court."

That may be forced to change, depending on the outcome of several appeals around the United States. For example, a 71-year-old wheelchair-bound man convicted of a 1972 rape-murder in San Francisco is appealing his conviction on the grounds that the jury was not allowed to hear the alternate statistics. Although John Puckett had other sex offense convictions, only a cold hit to some badly degraded DNA at the crime scene tied him to this one. There were no eyewitnesses, footprints, fingerprints, or confessions. (The case is People v. Puckett, No. A121368, Cal.Ct.App., 1st District, May 1, 2008.)

The National Research Council is calling for change. In their February report, they recommend improving reliability and transparency by taking the databases out of the hands of law enforcement and prosecutors entirely.

In the meantime, jurors -- hearing only the cheerleading version of the science -- will keep believing the CSI mantra that the science never lies.

Edward Humes's report in the California Lawyer is online HERE.

Wednesday, April 15, 2009

Brave judge tosses sexual assault conviction

Jessica's Law: Cruel and unusual punishment?

Jurors in criminal cases are generally kept blind as to the punishment that will be imposed if they find someone guilty. For that reason, one juror was dismissed during deliberations in a trial in Sonoma County, California, when he learned the potential outcome. The juror said he could not sleep once he realized that his guilty vote on a sexual assault charge could send the young defendant to prison for life.

Apparently, the judge in the case was similarly troubled.

Instead of sentencing 24-year-old Jaime Hernandez Gonzalez to life in prison yesterday, Judge Gary Medvigy dismissed the jury's conviction of assault with the intent to commit a sex crime during a burglary. He replaced it with a lesser conviction, residential burglary, which carries a maximum of six years in prison.

But the judge -- a former prosecutor and an Army reserves brigadier general who was decorated for his service in Iraq -- didn't stop there. In tossing the conviction, he read a lengthy statement questioning prosecutors' commitment to justice in light of the facts of the case.

Sentencing a young man with no prior criminal record to spend the rest of his life in prison for a crime that involved no violence or completed assault is so "grossly disproportionate" that it constitutes cruel and unusual punishment, the judge ruled.

In the rather bizarre case, Gonzalez entered a home through an unlocked sliding door, stripped naked, and accosted two sleeping women, removing the pajama bottoms of one. When the women screamed and ran away, Gonzalez fled too. The women testified that Gonzales appeared "zombie-like" or "comatose" during the assault, even when they screamed at him.

The judge slammed the 2006 Jessica's Law expansion under which Gonzalez was convicted, which mandates life imprisonment for sexual assault during a burglary, as "poorly drafted." He said it may be so overly broad as to be unconstitutional, because it requires the same punishment for crimes "involving minimal misconduct" as those involving severe violence and danger.

The District Attorney’s Office expressed outrage and threatened an appeal.

Meanwhile, the legal community in sleepy Sonoma County was abuzz over the judge's highly unusual action, according to news reporter Lori Carter, who covered the trial for the Santa Rosa Press-Democrat. Carter quoted a veteran attorney as calling the decision "gutsy":

"A lot of judges wouldn't do that because of politics. They're worried about reelection," said defense attorney Walter Risse.

Medvigy's conscientious stance will definitely cost him. The public hysteria over sex offending is manifested in the online comments to the Press-Democrat coverage, with vitriolic attacks and calls for the judge's ouster far overshadowing the few attempts at rational discourse.

The Press-Democrat article and related background coverage is HERE.

Photo credit: Press-Democrat

Hat tip: Tim Derning

Wednesday, April 8, 2009

Salon on Army PTSD diagnosis scandal

Many of my forensic psychology students have signed up with the military after getting their graduate degrees. A main reason is to get the student loan monkey off their back; the military will forgive their massive debts. That is hard to resist. But at what price service?

Today's Salon features an audiotape of civilian psychologist Douglas McNinch explaining to a combat veteran the pressure the military puts on treatment providers not to diagnose Posttraumatic Stress Disorder:

(CLICK ON THE IMAGE ABOVE TO LISTEN TO THE AUDIOTAPE)
"I will tell you something confidentially that I would have to deny if it were ever public. Not only myself, but all the clinicians up here are being pressured to not diagnose PTSD and diagnose anxiety disorder NOS [instead]."
The audiotape, secretly recorded by a patient labeled "Sgt. X," confirmed what "wounded soldiers and their advocates have long suspected -- that the military does not want Iraq veterans to be diagnosed with PTSD."

Why not? Because Posttraumatic Stress Disorder would require paying for expensive, intensive treatment, including possibly lifelong disability payments. Large numbers of vets suffering from severe trauma might also dampen public enthusiasm for war, and make recruitment even more difficult than ever.

After the tape surfaced, the Senate Armed Services Committee refused to investigate, and the Army conducted its own internal investigation that cleared itself of any wrongdoing. What a surprise.

Perhaps some of you have seen Michael Moore's award-winning documentary, Fahrenheit 9/11, which shows predatory recruiters prowling shopping malls in poor communities scouring for fresh meat. Or the harrowing movie Stop-Loss, about how hard it is for some to get out of the Army once they have served their time.

Many young people come home damaged or destroyed, with invisible but severe traumatic brain injuries (as I blogged about two years ago) or severe psychological trauma. After the military chews them up and spits them out, psychologists like my former students are supposed to put them back together again.

But, hey, it's really not that bad. It's only Anxiety Not Otherwise Specified. How hard can that be to treat?

"COMING HOME" is the title of the excellent Salon investigative series about U.S. Army troops who have returned from Iraq. Focusing on troops at Fort Carson, Colorado, Salon reporters reviewed more than two dozen incidents of suicide, suicide attempts, prescription drug overdoses and murder, much of which "could have been avoided if the Army did a better job of recognizing and treating the symptoms of post-traumatic stress disorder."

Those of you who are attending next week's Forensic Training Institute in Oakland, California, will get to hear more about diagnostic shenanigans and the controversy over forensic use of the PTSD diagnosis. (Hopefully it's not too late to sign up, if you haven't done so already.)

Monday, April 6, 2009

New book reviews

In the mood for some spring reading? My review of The Wrong Guys by Tom Wells and Richard Leo is now available online at the California Lawyer website. Here is how the review begins:

Innocent people do not confess. Especially to rape and murder.

That is the belief of most people, including jurors, judges, attorneys, and even the very police detectives who induce false confessions. It is supported by TV police dramas, in which the cops always nail the guilty, and the guilty then tell all.

The belief is strengthened by the emotional nature of confessions. Jurors find such declarations the most compelling of all evidence. And once a jury votes to convict someone who has confessed, reversal or exoneration is well-nigh impossible.

The Norfolk Four case is the perfect vehicle to challenge this misguided faith. A routine investigation into the murder of a young sailor's wife in 1997 turned into a runaway train, as detectives blindly pursued a gang-rape scenario that was inconsistent with physical evidence suggesting a lone assailant. Each time a suspect's DNA failed to match the sample found at the crime scene, the detectives added another suspect, essentially at random, until their list grew to at least eight.
The review continues HERE.

Or, for true crime, fiction, or other recent books, here are a few of my most recent reviews on Amazon. As always, please help boost my reviewer rank -- and let me know that you are reading my stuff -- by clicking on "yes" if you find a review helpful:

 
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