Everything Is Hard

The criminal justice system is a huge machine and there are always many things that serve to stop up the cogs. History has never been kind and criminal law is based on history and is a vainglorious attempt at achieving justice.

Some of the things currently plaguing the criminal justice industry are: juror’s prejudices, (the question as to whether there is a “CSI Effect?), the glorification of forensic science in crime scene dramas, the real backlog of the system, fraud by forensic experts, and incompetence with individuals who jeopardize the process among other things.

Where to begin? Whether one wants to believe there is a “CSI Effect” or not—and there are folks who have expressed their doubts—jurors need to realize that achieving justice requires a unique balance of elements, and that nothing is foolproof; and that technology is not the be all and end all for guilt.

Prosecutors are held to a standard when they bring a charging document and defendant to court. And that standard is to find: guilt beyond a reasonable doubt. That doesn’t mean that the jury must all be 100% convinced to a certainty. It means that there is sufficient evidence presented by the state that this person has committed this crime.

Now the evidence can come in a variety of forms from eyewitness identification to hard evidence or artifacts and even circumstantial evidence—such as: this person stalked the victim and had a restraining order issued against them in the past. Circumstantial evidence is a fact that can be used to infer another fact. It is built upon reasoning and expecting reasonable people to figure it out. And cases in the past, Dear Reader, have been won on circumstantial evidence. Because, if there are enough things that point to guilt: bad character evidence, no alibi, previous behavior, mental illness, stressors, whatever—sometimes a pile of things put all in one place is a mountain that cannot be ignored.

A Few Pet Peeves

There are more than a few things that drive me crazy about how forensic science and the CSI groups are depicted on TV crime dramas. But I also have some pet peeves that don’t necessarily warrant writing a column about such as: when Delko got shot in the head just recently, died and came back, was his recovery a miracle or what? Out for so long, no brain damage and he was back at work very soon, just a little slower on the uptake. Puleese, this makes victims of TV viewers to allow people to think that this is even possible. I was kind of hoping that he was dead after I saw how they treated his “coming back.”

Okay, one time on an episode quite a long time ago (and since I don’t have the DVD set from years past,) I’ll just say that the CSI—Las Vegas team was out in the dessert and Gil Grissom was talking about “tasting a bone.” Listen, if you find remains, no way are you going to go putting it up to your lips. Can we say dangerous practice? I mean, why doesn’t that man have hepatitis C by now?

And, too, in the same vein, you will never see law enforcement stick their finger into a bag of powder, taste it and say, “that’s cocaine all right.” Wow, how irresponsible it that! It could be PCP, a dangerous hallucinogenic, or any number of harmful substances (in fact some drugs are cut with harmful chemicals themselves, like arsenic). Cops often use crip kits. These are testing kits that will determine the characteristics of a drug or chemical substance using reagents and small squirt bottles and testing vials. For more information on what a kit looks like, what you can test for, and other specifics, check out this link: http://www.cripkit.com/products/carkit.html

Okay, this is short tonight, but I feel better already for saying it.

Dividing it up: Jurisdiction

Usually on television an entire crime scene unit arrives and sweeps through the scene collecting all the evidence including photographs, fingerprints and trace. Then they are shown in the lab manipulating what they have just collected and within a short period of time, they are calling detectives with a match to the prints found at the scene or some other leading discovery.

In reality, a patrol officer is dispatched to a crime scene and maybe, if the jurisdiction has manpower, a backup officer will follow. After securing the area if it’s a small scene, they will take photographs and maybe dust for prints. If it is something more than a patrol officer can handle, a detective is put on call. One will usually arrive and for larger scenes again, maybe two will be called. Generally about the only time an entire criminal investigation division will be sent is for a major case like murder, aggravated robbery, kidnapping or something heinous.

Jurisdiction is probably one of the biggest factors to determine who does what, when, and how. For example, a small town with the population of 900, is going to operate the best they know how with limited men and resources. It’s the police officer then who will do many different jobs such as collecting evidence, logging it in and sending it off to be processed at a lab in a larger city. In a slightly larger city with a more serious crime, the detective may be working alone, collecting evidence, logging it in, making initial contact with victims, typing reports, interviewing witnesses, showing photo lineups, locating potential suspects, and collecting enough probable cause for a judge to issue a complaint. Detectives try to help each other out if it is overly large.

Let’s face it. Communities everywhere make do with what they have. If they need their officers to multi-task, they do it. If law enforcement need more help, the officers will call and ask but you can’t create what isn’t there. And I’d venture to say that all law enforcement everywhere could use more capable men and resources.

One thing that always struck me as funny was when the folks on TV cross over into other jurisdictions, or if they fight with another department to get a case so they can see justice done. Who would have time for that? Who asks for more work when they're overworked already? Plus, officers probably have to wait weeks, if not months for evidence results and the cases just keep coming. Juggling, juggling, trying to make things move in sync—it’s got to be super stressful and tires me just thinking about it.

Television Depictions Worry Others

Ha! In USA TODAY today (February 13, 2007), there was a small article on the op-ed page about how the hit TV show 24 has showed a lot of torture scenes and, oh my, the military is upset.

Now you can hear me talking?! Yes, if you’ve been watching Jack Bauer this year you’ll note that the writers have ramped up the scenes in this new season with some good things and some very stupid things. Okay, the stupid thing first: bad government. Yeah, there is always some political figure who is either in cahoots with someone, has no ethics or brain, or is planning their own plot intrigue. I’d say, if you were from a visiting country and watched 24, you’d probably get the idea our government is badly run. (Need we say more about our political image around the world?)

But the problem the military officials are moaning about is the frequency with which the pretend CTU unit uses torture to get key information; (so far this year, Jack Bauer’s not doing real well in the "getting good information" scenario). Anyway, the editorial committee at USA TODAY wants us to know that in real life: [Quote] “. . .ticking bomb scenarios like this almost never occur, and torture rarely works. Suspects will make up anything to stop the pain or humiliation.” [That’s an end-quote, not my words]

Of course, I don’t know anything about the military and their sneaky tactics. I also don’t know anything about torture of any kind (thank heaven), but I do know that the military doesn’t like pop culture making claims in the name of fiction that damage their policy or image, especially when it comes to the terrorism fight that is on-going. (I just wrote about the Patriot Act for the 2nd edition of my book Legal Ease: A Guide to Criminal Law, Evidence and Procedure, and, if you have not read the Patriot Act, you will be mightily surprised at the liberties that are taken away from us—but I digress.)

So the military is upset about television depictions! Hel-oo-o. That’s what I’ve been saying on behalf of forensic science! How do you think the criminal justice system feels about all the stupid things that are “created” on television that one can only call bad infotainment? It’s hard enough to make real life work, when people believe that forensic science and law enforcement can do all these made-up things that are almost all but impossible in a lot of criminal cases. Reality folks, can be the pits. And here I am having a hard time selling a book that will teach people who love the TV crime drama shows what is real and what is totally absurd—and I can’t get a publisher to take it on. What? the American public doesn’t want their bubble burst? They want to believe that things operate like they do on Bones, or CSI—Las Vegas? They want to get on a real life jury and make decisions about someone's future or very life when they don't know what's real? Pu-leese. Think on that.

http://www.usatoday.com/news/opinion/editorials/2007-02-12-edtwo_x.htm

Breaking the Law

I just finished doing the Subject Index for the 2nd edition of a criminal law book of mine, Legal Ease: A Guide to Criminal Law, Evidence and Procedure. Indexing is weird. Not only is my brain a little skewed from thinking about legal terms in a backwards fashion, but the format fuses your left brain and right together somehow so I feel fried—glad it’s finished and in the mails on its last route before publication.

We are trying to covert Legal Ease into a textbook because I often get mail from law teachers asking for that format. So I added a section for definitions, questions and the like (even an essay part, poor students). But it reminded me how narrow the law really is, how exact the wording, and what constraints that puts on the players: the defense team, the prosecution, and even the judge and jury.

Away, this got me to thinking about the TV crime dramas and forensics and the principals who play them. Most of them should be in jail themselves. The characters have a tendency to break the law. And just last night, I watched the main anthropologist on Bones, Temperance Brennan, pull a very big gun out of her purse. Okay, so she works in this government facility, right? Well, it’s very unlikely that security are not out in front screening everyone who comes through the building. And did she have a "concealed gun" permit for said weapon? They never said in the story and she didn’t either. But surely alarms would have gone off on her arrival.

Of course, I went back to watch some old Perry Mason mysteries on television too. They showed them late at night on a channel that shows oldies—and I was very surprised to find out that Perry broke the law every week! He either set up the perpetrator by doing something shady, led police in a wild goose chase, secreted someone away, or withheld information. Of course, the audiences were not as savvy then, and I’m sure the script writers weren’t the best fact checkers either, but old Perry would have lost his license to practice many times. The American Bar Association would have had his number for sure!

Empty Promises: Personal Involvement

Sometimes I think the TV crime drama writers are on crack. Harsh? Well, let’s consider one topic that comes up on every single popular network show without fail. In fact, when it begins to show up, I know the show is too mainstream. What do you think my little pet peeve might be?

Of course, you looked at the title, it's the "empty promises." For some reason, and Crossing Jordan seems to be the worst offender, every week they have Dr. Jordan Cavanaugh, a medical examiner, (who never does any work in my estimation, she’s hardly ever in the autopsy area), making promises to victims. It could be a mother, a child, a girlfriend, hey, she makes promises to all the victims no matter; and says, “I promise, we’re going to find the person who did this!”

Argh. Give me a break. To begin, let’s assume that law enforcement and forensic scientists are professionals. In order to do their job, they must remain detached. Why? Well, most forensic scientists never leave the lab and when they do get evidence to analyze, it usually has a case number on it. In order to do what a scientist is supposed to do, and that is, to test evidence, they perform a series of whatever it is their department does, without trying to taint the evidence, convict someone in particular, or, it wouldn’t be impartial—the keywords for science. Looking for impartial results. And usually they are doing several tests to make sure that there are no assumptions—just chemical answers or adequate testing of unknowns against knowns. That’s it.

They would be a fool to make promises of any kind to a victim. First of all, with the backlog they’re working under, they might not see that evidence for weeks!

And if they got personally or emotionally balled up in a crime, they’d be in the loony bin before month’s end. Who has that much compassion? It’s just ridiculous. Every time I hear those empty words, “I promise you . . .” I just want to pull my hair out. It’s emotional drivel and good for a story, but honestly, not actual day time reality.

The Media and Yates

I am sure if you read the news or had caught it on the radio, you will have heard about Andrea Yates. She will always be known as the mother who drowned her five children in a bathtub at home.

No doubt that Yates’ mental illness and troubled psyche predated the killings. She had a history of mental problems and was put on anti-psychotic medication, and had attempted suicide, I believe, a couple times before this incident. The murder case got a lot of press and there was even an issue that began here, it was about postpartum depression.

What you may not have known or remember hearing was that in 2002, a jury rejected Andrea Yates’ insanity defense. At that time, she had been sentenced to life in prison for the deaths of three of her five children.

But that conviction got overturned. Yes, a state of appeals court reversed that sentencing because an expert witness for the state, a psychiatrist, messed up. He testified that there was a television series called “Law and Order” that had aired an episode about a woman suffering from postpartum depression who drowned her children.

Then, when her next trial came up in Houston, Texas, (which has been called “the death penalty capital of the world”) the jury reached a new verdict. After 13 hours of deliberation over three days, the jury finally decided that Yates should be committed to a state mental facility in Texas until she is deemed to be no longer a threat.

Yates’ attorney Wendell Odom expressed the view that the correct decision had been made, he said that he believed his client was mentally ill and needed help and attention. But the Harris County District Attorney, Joe Owmby, essentially told reporters he was disappointed by the verdict. To paraphrase Mr. Ownby, he said that he’d always believed that she knew it was a sin and legally wrong to kill her children.

Now whatever you think, the television show and the media played a big part in this case. Once, in the overturned sentencing; and again with the final decision. My feelings are that she was definitely mentally ill, had many bouts with illness, and it’s a sad commentary that her husband did not do more to help his wife or intervene to save his children. But, the prosecuting attorney claimed he feels that the heavy media coverage and the editorials in the local paper must have had an effect on the jury. He wasn’t accusing them of not deliberating correctly, but said that after living with it for the past five years, that they were “human beings”. Did he mean that media changed the jurors' minds?