The system is sooooooo fucked up; this is one result. It is not an uncommon injustice, and all of it is due to our “war on drugs”! To learn how, READ How the war on drugs destroyed Justice.
Excerpts from the Article:
Issues facing exonerees and wrongfully convicted individuals have been recurring topics in CLN and PLN. Still, there’s another category of arguably similarly situated citizens that must also be paid some attention: Those who were wrongfully accused of crimes they did not commit.
Even though a great many of these innocents were cleared of culpability and released before trial and others prior to being indicted, consider those whose lives were temporarily disrupted. Some of these victimized citizens’ lives would be all but destroyed just by their accusation and arrest.
Brandon Gonzales, 23, was attending a homecoming party in October 2019 at a Greenville, Texas, event hall. He had left the event and was sitting in a car outside when gunfire erupted from within the venue. He was told by fleeing partygoers that someone was inside shooting a firearm. Two partiers were killed, and many others wounded. Gonzales left the area and went home, thankful that neither he nor any of his friends had been among the dead or wounded, resuming his former life … for a short while. Gonzales would fall victim to an all-too-real (and common) example of an erroneous eyewitness identification. Three days after leaving that party, he found himself under arrest at his job by a phalanx of Hunt County sheriff’s deputies. With more than one death at that party, capital murder was the charge in the state that leads the nation in death penalties assessed and executions carried out. Gonzales had good reason to worry about his future.
With a hurriedly assessed $1 million bond, the former automobile dealership employee could never in his wildest dreams have hoped to make, Gonzales spent nine days in jail, reading his Bible, praying for deliverance, and writing in his journal. Apparently his prayers would be granted.
The investigators looking to actually solve the case rather than just obtain a conviction had cleared him of any involvement, despite a flawed eyewitness statement.
Released from jail, Gonzales found himself facing an entirely new raft of problems. The New York Times had run the story of his capital murder arrest, even to the point of printing his mugshot. His story and booking photograph landed on the web. Gonzales soon found himself to be the object of a great deal of unwanted, unnecessary, and unhelpful attention. When he saw a bystander filming him at a local department store, he moved thousands of miles away to live with relatives in Florida, seeking a fresh start. Even after arriving in Florida, he remained haunted by his false arrest ordeal. After a Google search where his arrest, charge, and mugshot remain, employment door after employment door slammed firmly shut. One prospective employer recently suggested that Gonzales let some more time elapse before trying to find a job.
A bad eyewitness accusation and the cops’ rush to arrest are not an isolated or even rare occurrence. This is demonstrated by the recent release of a movie about Richard Jewell, a former security guard who found a bomb at the 1996 Olympic Games. He saved many lives yet wound up being falsely accused of planting the bomb himself. Because of that false accusation, Jewell’s life was effectively destroyed due to the false accusation against him.
Gonzales was also vilified. “This really, it ruined my life,” he told The Dallas Morning News. “Everything was going great. I got up to go to work every morning. I provided for my kids. Now it’s like, even though I was set free — they finally found out I was innocent — it’s still there.”
Gonzales credits friends, family, and lawyers for sticking with him. Exculpatory evidence and a contradictory timeline given by an unnamed witness bolstered his innocence. Gonzales, it was revealed, was on a FaceTime call with his girlfriend while the shooting was going on. Others saw him sitting in his vehicle outside the party site.
Who killed Byron Craven Jr. and Kevin Berry, and injured six others, remains a mystery. Who devastated Gonzales’ life isn’t.
More out of control prison abuse, which costs YOU taxpayers BILLIONS of dollars each year. All of it is PREVENTABLE!
There will be dozens of lawsuits as a result of this and YOU also pay for those.
Excerpts from the Article.
After what officials are calling coordinated fights, six Oklahoma prisons were placed on lockdown status for over a week. One prisoner died and 36 prisoners and several staff were injured in the melees.
The lockdowns began on September 15, 2019, after fights between gangs at prisons in Hominy, Sayre, Fort Supply, Lawton, and Stringtown occurred within 24 hours of altercations at Northeast Oklahoma Correctional Center in Vinita.
“It has to be a coordinated effort,” said Bobby Cleveland, director of the Oklahoma Corrections Professionals. “They even had fights at the minimum-security prison.” He noted that prisoners use contraband cellphones to coordinate illegal efforts.
Following the lockdowns, guards conducted shakedowns of the prisons and confiscated homemade weapons. “A lot of shanks . . . broken broom handles, broken faucets, faucet heads that have a cord attached to them,” said Matt Elliott, spokesman for the Oklahoma Department of Corrections (OCDC). “The types of weapons inmates typically use and fight with.”
Prisoner Chad Burns, 27, was killed in a fight at the Dick Conner Correctional Center in Hominy. He was serving a 15-year sentence for 2016 convictions on charges of weapons, assault and battery, robbery, and burglary. Of the 36 injured prisoners, 12 were hospitalized with “non-life threatening injuries.” No prison staff were hospitalized.
The fights were gang- and race-related, Elliott said. He refused to identify the gangs involved.
“No, and I don’t know that we will,” he said. “We don’t want to spread that information and touch off more violence and add notoriety to those gangs. When you do that, you’re building their street cred.”
OCDC took action to attempt a break-up of the gangs. “DOC staff are transferring inmates identified in the fights to other facilities for their safety,” OCDC said in a statement. “The agency has also added staff to the above facilities to enhance security.”
The number of prisoners involved in the fights was undetermined. “We’re still investigating as far as the numbers involved,” Elliott said. “It’s going to be a lot of people involved.”
Prison officials began lifting the lockdowns on September 24, 2019. The process was graduated with controlled movement in the initial stages before normal operations were resumed.
Excerpts from the Article:
Probation and parole are often advertised as “alternatives to incarceration” that allow people to largely continue on with their life around a support group. However, a new report released late last week from the Human Rights Watch and the American Civil Liberties Union (ACLU) found that probation and parole actually drive high numbers of people right back to jail or prison.
Many of these people are disproportionately Black and brown, and the authors say their return to a cell is largely due to the fact that they don’t get the services and resources they need.
“Probation and parole are seen as acts of leniency, but in the states we examined, they often lead to incarceration just for using drugs, failing to report a new address, or public order offenses like disorderly conduct,” said Allison Frankel, Aryeh Neier fellow at Human Rights Watch and the ACLU, and the report’s author. “Incarcerating people for failing to meet the overly burdensome requirements of supervision upends peoples’ lives without meaningfully addressing their underlying needs.”
The data shows that over the past 50 years, the use of probation and parole in America has “skyrocketed” — parallel to increasing jail and prison populations. As of 2016, 4.5 million people, or 1 in every 55, were under supervision, often for years.
To better understand this problem, the authors did in-depth research on states where the problem is particularly acute — Georgia, Wisconsin, and Pennsylvania — and interviewed 164 people directly impacted by the probation and parole system.
One man, Earnest Burgess, was convicted of drug possession in Milwaukee, Wisconsin in 2011. After looking at his conditions of supervision document, he noticed certain conditions like “You shall not have in your possession at any time more than $100.00 in cash without agent’s approval,” felt onerous. With more than 35 rules and conditions, Burgess said he wondered, “Are you trying to rehabilitate me, or are you trying to punish [me]?”
Researchers also spoke with a Black Pennsylvania woman who “cycled through probation and jail,” mostly for shoplifting and drug offenses, which she says “stemmed from a substance use disorder.” “I asked for programs,” the woman told the researchers, “but [probation] didn’t want to hear that I need help; they just gave me time.”
The researchers also found that there are stark racial disparities in supervision, and its resulting punitive enforcement.
Nationwide in 2016, Pew Charitable Trusts reported that 1 in every 81 white people was under supervision, compared with 1 in every 23 Black people. They also found that Black Americans are more likely to be arrested and found in violation of their supervision terms compared to any other race or ethnicity.
In 2017, 45 percent of all state prison admissions resulted from probation or parole violations, proving that this problem is pervasive in the system, the authors detail.
Nearly half of all prison admissions in Pennsylvania were for parole violations; and, over the last two decades, Wisconsin prisons have reincarcerated “about twice as many people for supervision violations as for regular criminal convictions.”
In Georgia, during a 5-month period in 2019, between 23 and 43 percent of all jail bookings in 9 counties involved probation or parole violations.
At their root, probation and parole violations “often stem from poverty; a failure by authorities to support people in addressing underlying challenges, such as substance use disorder, housing insecurity, or mental health conditions; and racially biased policing and enforcement.”
Instead, they suggest the governments invest in jobs and housing opportunities while encouraging voluntary treatment for substance use disorders and mental health care for those that need it.
This way, the authors write, you’re treating the criminality at its root, and ensuring that everyone is well equipped to enter back into their life. “By investing in communities over supervision and confinement, governments can work to break the supervision-to-incarceration pipeline, and help people get the resources they need,” Frankel concluded.
The full ACLU/HRW report can be accessed here.
The Whole Story:
Wherever you are in America, tune in! YOU can learn from my friend, Attorney General Kathy Jennings, on this vital issue.
Excerpts from the Article:
A statewide task force created to address systemic racism and police brutality toward people of color in Delaware is set to start meeting next week.
The 18-person group selected by the Delaware General Assembly includes one ex-police Democratic lawmaker, two Republican lawmakers and the state’s pro-reform Democratic attorney general. It also includes several police chiefs, a police union lobbyist and a handful of advocates for Black communities in the state.
The group will meet for the first time via Zoom on Thursday, Aug. 6, at 10 a.m. The meeting will be livestreamed, and there will be time for public comment from virtual listeners.
The task force, which was created in response to anti-racism protests across Delaware following the death of George Floyd in May, is part of an eight-item list of promises that the Delaware Legislative Black Caucus announced in June.
State Representative Nnamdi O. Chukwuocha and other elected officials called for new legislation to address police brutality and racial injustice in Delaware. The agenda also includes pushing for every officer to have a body camera and banning police chokeholds and kneeholds unless the officer feels it’s necessary.
The latter was quickly written into a bill that lawmakers scrambled to pass before the General Assembly ended its session on June 30. The bill is still waiting for Gov. John Carney’s signature to become law. The governor could sign the bill as early as next week, but a date hasn’t been nailed down yet, according to his office.
Some members sitting on the task force, including Democratic Attorney General Kathy Jennings, are pushing for reforms that go beyond what the Black Caucus promised, including increased transparency in police departments.
The task force is headed by Darryl Parson, a deputy attorney general in the Delaware Department of Justice’s Civil Division, and Rep. Franklin Cooke, D-New Castle, a former New Castle County police officer in the Black Caucus. Representative Franklin D. Cooke (D) District 16, will be part of a new police reform task force.
The task force includes police advocates who have so far been resistant to some reform measures. One of them is Sen. Brian Pettyjohn, R-Georgetown, who was one of a handful of Republican senators in late June to vote against the bill to stop police from using chokeholds and kneeholds.
Task force members
Rep. Franklin Cooke, D-New Castle (co-chairman)
Darryl Parson, deputy attorney general in the Delaware Department of Justice’s Civil Division (co-chairman)
Rep. Ruth Briggs King, R-Georgetown
Sen. Brian Pettyjohn, R-Georgetown
Attorney General Kathy Jennings, a Democrat
Delaware Attorney General Kathy Jennings speaks at a press conference about the need to pass legislation to address police brutality and address racial injustice in Delaware.
James Liguori, a defense attorney in Kent County and chair of the Criminal Justice Council
Spencer Price, director of the state government Statistical Analysis Center (ex-officio)
Brendan O’Neill, chief defender of the Office of Defense Services
Thomas Brackin, president of the Delaware State Troopers Association
Fred Calhoun, lobbyist and president of the Delaware Fraternal Order of Police
Fred Calhoun is a lobbyist and president of the Delaware Fraternal Order of Police
Patrick Ogden, chief of University of Delaware Police and chairman of the Delaware Police Chiefs Council
R.L. Hughes, chief of Georgetown Police and former Delaware State Board of Education member
Melissa Zebley, Delaware State Police superintendent
Larry Johnson, a former Naval Police Force patrolman who has trained officers in response to civil disobedience, including crowd control and civil dialogue
Michelle Taylor, president and CEO of United Way of Delaware
Michelle Taylor is President and CEO of the United Way of Delaware.
Bernice Edwards, executive director of the First State Community Action Agency
Ron Handy, member of the NAACP
Sherese Brewington-Carr, member of the National Coalition of 100 Black Women Inc.
During the first meeting, the task force will announce who will head up its four subcommittees and name members of each, according to a news release from the Delaware General Assembly. The subcommittees will look at proposals and make recommendations to the full task force for potential law changes.The subcommittees are:
1. Use of Force and Imminent Danger: This group will look at a use-of-force standard and a “definitive imminent danger policy” to “encourage police officers to employ all tactics necessary to avoid using deadly force.”
2. Workforce Development: This group will look at recruitment, hiring and retention practices to make sure police departments have an “appropriately diverse complement of officers.” The group will also look at deescalation training.
3. Community Policing and Engagement: This group will look at expanding “citizen-involved public safety outreach across the state.” It will also look at increasing crisis intervention services and “ongoing proactive mental health care for every police officer in Delaware.”
4. Transparency and Accountability: This group will look at amending the Law Enforcement Bill of Rights that delineates how officers are disciplined for bad behavior and how much of that disciplinary information is publicly available. It will also look at creating civilian review boards for non-police to independently review police misconduct, as well as a database of police misconduct findings.
How to watch the meeting:
The meeting will be live-streamed on the General Assembly’s YouTube channel, which is titled “Delaware General Assembly.”
The public can offer comments during the public comment portion of the meeting or beforehand via email at LEOTaskForce@delaware.gov.
Comments submitted by email will continue to be accepted and included as part of the official record through Friday, Aug. 7, according to the General Assembly’s news release.
Supreme Court won’t halt challenged border wall projects The Supreme Court has declined by a 5-4 vote to halt the Trump administration’s construction of portions of the border wall with Mexico following a recent lower court ruling that the administration improperly diverted money to the project
This is yet another good reason to oust tRump! We need fair judges, not conservative ideologues, on the Supreme Court. VOTE BLUE ALL THE WAY, AND THEN CONGRESS CAN RIGHT MANY OF tRump’s RACIST WRONGS!
Excerpts from the Article:
The Supreme Court declined by a 5-4 vote Friday to halt the Trump administration’s construction of portions of the border wall with Mexico following a recent lower court ruling that the administration improperly diverted money to the project.
The court’s four liberal justices dissented, saying they would have prohibited construction while a court challenge continues, after a federal appeals court ruled in June that the administration had illegally sidestepped Congress in transferring the Defense Department funds. “The Court’s decision to let construction continue nevertheless I fear, may operate, in effect, as a final judgment,” Justice Stephen Breyer wrote in a brief dissent for the four liberals.
Friday’s order means the court is not likely even to consider the substance of the issue until after the November election, while work on the wall continues. Last summer, at an earlier stage in the case, the justices also split 5-4 along ideological lines to allow the administration to begin construction using $2.5 billion in Defense Department funds.
That allowed President Donald Trump to make progress on a major 2016 campaign promise heading into his race for a second term. The administration wanted to use the money to replace a total of 129 miles (208 kilometers) of rundown or outdated fencing in New Mexico, Arizona and California. As of mid-July, 92 miles (148 kilometers) have been completed according to U.S. Customs and Border Protection.
The case has its origins in the 35-day partial government shutdown that started in December of 2018. Trump ended the shutdown after Congress gave him approximately $1.4 billion in border wall funding, but that was far less than the $5.7 billion he was seeking. Trump then declared a national emergency to take cash from other government accounts to use to construct sections of wall. At the time, the money Trump identified included $2.5 billion in Defense Department money, $3.6 billion from military construction funds and $600 million from the Treasury Department’s asset forfeiture fund. The case before the Supreme Court involved just the $2.5 billion in Defense Department funds. The American Civil Liberties Union, which sued the Trump administration on behalf of Sierra Club and Southern Border Communities Coalition, has said it will seek to tear down sections of the wall that were built with the money.
“Every lower court to consider the question has ruled President Trump’s border wall illegal, and the Supreme Court’s temporary order does not decide the case. We’ll be back before the Supreme Court soon to put a stop to Trump’s xenophobic border wall once and for all,” Dror Ladin, staff attorney with the ACLU’s National Security Project, said in a statement following the court’s order Friday.
The Supreme Court is on break for the summer but does act on certain pressing items. It will begin hearing cases again in October.
Prison time is the only way to curb guards’ corruption. And at least 90% of all prison contraband is brought in by guards!
Excerpts from the Article:
A Cross County man who worked as a prison guard will spend 12 months and a day in federal prison after he smuggled tobacco and cell phones into the federal prison at Forrest City, federal prosecutors said Thursday.
Josue Duane Garza, 42, of Wynne was sentenced in federal court in Little Rock in the case, U.S. Attorney Cody Hiland said in a media release.
Garza was arrested after a 2018 investigation by authorities. “In June 2018, an inmate at the Federal Correctional Complex in Forrest City, Arkansas informed prison officials that his family had been purchasing tobacco and cell phones and mailing them, along with cash, to Garza at a P.O. Box in Colt. The inmate reported that another inmate had started the scheme but had been transferred to another facility, leaving this inmate to take over the scheme,” Hiland said. “Both inmates confirmed that their parents had purchased tobacco and cell phones, mailed them to Garza’s P.O. Box, and included cash. The parents received money orders and cash from the inmates’ families, who were paying for the inmates’ purchases. The inmates said they split the proceeds with Garza.”
Garza, who pleaded guilty in Aug. 2019 to bribery of a public official, reportedly admitted during an interview with federal authorities that the scheme went on from Oct. 2017 to July 2018 and that he had received over $40,000.
In addition to the jail sentence, Garza also received one year supervised release in the case.
Good, because private prisons are a disaster, and we should know as much as possible about them! Our friend, Paul Wright, of Human Rights Defense Center is giving them hell again. Go, Paul, GO!
Excerpts from the Article:
On May 1, 2020, the Texas Attorney General’s Office issued an opinion holding that all records related to a private prison contractor’s operations in the state were public information subject to the Texas Public Information Act (TPIA). The opinion bars an effort by the GEO Group to shield some of its Texas records from scrutiny by the Human Rights Defense Center (HRDC), the Florida-based nonprofit that publishes PLN and its sister publication, Criminal Legal News.
In January 2020, TPIA was amended with language to clarify that “public information” from a “government body” includes records from a “confinement facility operated under a contract with any division of the Texas Department of Criminal Justice” (Texas Government Code § 552.003(l)(A)(xii)).
HRDC filed its request February 6, 2020, seeking information on any payments totaling at least $1,000 that GEO Group had made since 2010 on claims or lawsuits related to its operation in the state, now totaling more than a dozen jails and prisons.
But GEO Group refused the to honor the request for records predating the 2020 TPIA amendment, arguing that before that time it was not considered a government body and so it did not have to comply with a TPIA request. The firm – the country’s largest private prison contractor, with nearly $2.5 billion in 2019 revenues – asked the attorney general’s office for its opinion on February 24, 2020.
In response, the attorney general’s opinion found that the information was public information within the meaning of the Act and GEO must release all parts of it not subject to an exception to disclosure under the Act.
“Private prisons have a long history of corruption and fraud, which is perpetuated by a lack of transparency,” said HRDC executive director Paul Wright. “Concealing the expenditure of taxpayer dollars deprives the public of knowledge about how well or poorly their tax money is being spent. The Attorney General’s office recognizes the importance of transparency around the private prison industry.”
Although the opinion contains language limiting it to the current information and situation, it tacitly holds that the amended definition covers documents made prior to the amendment of the Act, so the records of private prison companies are subject to disclosure under TPIA. This is a solid win for HRDC and prisoners held in Texas private prisons. See: Texas Attorney General’s letter opinion # OR2020-12334
South Carolina Supreme Court Overturns Murder Conviction Where State Presented Improper Testimony Regarding Trace DNA Evidence
This is one of several articles I have posted regarding problems with DNA evidence. When jurors hear “DNA” they tend to think it is foolproof evidence of guilt. In some cases it is, in others it is not, as this article points out.
With thousands of innocent people in our prisons (maybe those on this Court know that), the Supreme Court of South Carolina did the right thing in reversing this conviction.
Excerpts from the Article:
The Supreme Court of South Carolina reversed Billy Phillips’ murder conviction because the State presented improper testimony regarding DNA evidence and provided information to the jury that was simply wrong.
Well-known drug dealer Darius Woods was found shot to death on his couch. His handgun — the murder weapon — was laying on his chest. He was known to carry large amounts of cash, and his pockets were turned inside out, indicating robbery. After his arrest, Phillips filed a pretrial motion seeking to exclude the expert testimony of Lilly Gallman regarding DNA testing she had performed. The trial court held a hearing on the motion but did not take any testimony. The trial court ruled Gallman’s testimony was admissible.
Gallman testified that of the 13 DNA samples submitted for testing only 11 samples contained enough DNA for testing. She testified that the samples were “touch DNA.” (Touch DNA, also known as “trace DNA,” comes from epithelial cells that are deposited after a person touches or handles an object.) Gallman compared the DNA samples prepared from the remaining 11 samples with a sample submitted by Phillips. She testified that he was excluded as a contributor from all but two of the samples.
The sample taken from the murder weapon and the sample taken from the inside of Woods’ pants pocket contained a mixture of DNA from at least three people. Gallman testified that Woods and Phillips “c[ould] not be excluded as contributors” to the mixtures in either sample.
Concerning the sample taken from the gun, Gallman further testified that “the probability of randomly selecting an unrelated individual who could have contributed to this mixture is approximately one in two hundred.” As to the pants pocket, she testified the probability was “one in two.” At one point during the trial, the prosecutor referenced three people handling scissors and asked “if … you find that there’s at least three, that just means I have left part of my DNA on there. Correct?” Gallman answered: “It means that you left cells, skin cells on that item.” At no point did Gallman inform the jury that the touch DNA samples contained only a fragment of a DNA profile.
The State also presented to the jury the videotape of the pre-arrest police interview of Phillips. He stated he had been to Woods’ home several times the day of the murder, smoking pot and drinking alcohol. He stated he had handled Woods’ gun while imitating law enforcement.
In her closing argument, the prosecutor told the jury: “If you don’t touch it, you are automatically excluded. One hundred percent excluded. Well, we have his DNA on that gun [and] we also know that defendant’s DNA … is inside [Woods’] pocket. Had he not touched the gun or the pocket, his DNA would not be there.” Phillips was convicted, and he appealed. One argument on appeal was that the trial court erred in admitting Gallman’s testimony because its probative value was outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury.
The South Carolina Supreme Court observed “[w]hen admitting scientific evidence under Rule 702, the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable.” State v. Council, 515 S.E.2d 508 (S.C. 1999).
This is part of the trial court’s “gatekeeping role” regarding the admission of expert testimony. Id. The proponent of scientific evidence has a corresponding responsibility to provide the trial court with the factual and scientific information needed to carry out its gatekeeping duty. Id. The test outlined in Council is materially similar to the federal test in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
If the evidence is admissible, it must then be balanced against “the danger of unfair prejudice, confusion of the issues, or misleading the jury.” SCRE, Rule 403. In most cases, the risk of confusing or misleading a jury with DNA evidence is low because the DNA evidence is usually straightforward and reliable, and its probative force is highly persuasive. Council. Complete DNA profiles have been used to show that the probability was greater than 99.9% that a particular person was the source of the DNA. State v. Ramsey, 550 S.E.2d 294 (S.C. 2001). Because the persuasiveness of DNA evidence is so great upon the minds of jurors, “when DNA evidence is introduced against an accused at trial, the prosecutor’s case can take on an aura of invincibility.” People v. Wright, 37 N.E.3d 1127 (N.Y. 2015).
But in most cases involving only touch DNA, including the instant case, the DNA evidence is not worthy of the same confidence because touch DNA samples usually provide only a fragment of the DNA profile. A complete DNA profile contains all of the alleles (genetic markers) in a sequential pattern or chain unique to each individual. But a fragment contains only a piece of the chain representing a partial pattern that may be found in more than one person’s DNA. (For illustrative purposes only, suppose one person’s alleles were in a pattern identified as A – G – E – B – F and another person’s were identified as C – G – E – B – D. A fragment found to have the pattern G – E – B could belong to either person.) “Touch DNA poses special problems because epithelial cells are ubiquitous on handled materials, because there is an uncertain connection between the DNA profile identified from the epithelial cells and the person who deposited them, and because touch DNA analysis cannot determine when an epithelial cell was deposited.” Hall v. State, 569 S.W.3d 646 (Tex. Crim. App. 2019).
Additionally, the size of the fragment determines an analyst’s ability to determine the probability that a random person other than the suspect was the source of the DNA. In the instant case, Gallman testified that the probability of someone other than Phillips being the contributor to the DNA recovered from Woods’ pocket was one in two. That meant any person from half of the world’s population could have left the DNA. This, in turn, meant the probative value of the evidence in identifying Phillips as the person who had his hands inside Woods’ pocket robbing him was almost zero while the risk of confusing and misleading the jury was great.
This error was compounded by both Gallman’s testimony and the prosecutor’s closing argument. Each misled the jury into believing that the only way a fragment matching Phillips’ DNA could be found on the gun and in the pocket were if Phillips had touched both. But as explained earlier, a DNA fragment is not unique to an individual person. The touch DNA in this case could have been left by a person other than Phillips even though the fragment contained some alleles found in a pattern similar to some of Phillips.’
Additionally, “[t]ouch DNA is … subject to what is known as secondary transfer. This refers to the possibility that an individual or an object may serve as a conduit between a source and a final destination without any direct encounter.” Bean v. State, 373 P.3d 372 (Wyo. 2016). That is, suppose a person deposits epithelial cells when touching a coffee cup. A second person then handles that cup and the deposited epithelial cells are transferred to the second person’s hands. The second person then handles a pistol and deposits the first person’s epithelial cells onto that pistol. The first person’s DNA would be found on the pistol even though that person never touched the pistol. [Editor’s note: See the cover story of the September 2018 issue of CLN for an in-depth discussion of the dangers of using secondary DNA transfer evidence in criminal cases.]
Finally, the South Carolina Supreme Court concluded that the trial court failed in its gatekeeping responsibility. The trial court neither took any testimony at the pretrial hearing nor conducted any analysis to determine whether the probative value of the DNA evidence was outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. And the prosecutor failed to provide the trial court with any scientific information to enable it to make that determination. The Supreme Court instructed: “DNA evidence is a complicated scientific subject…. [I]f an objection is made, the trial court must hold a Daubert/Council hearing, the proponent of the evidence must present the factual and scientific basis necessary to satisfy the foundational elements of Rule 702, and the trial court must conduct an on-the-record balancing of probative value against the applicable Rule 403 dangers.”
The Court concluded that by not conducting the Daubert/Council hearing, the trial court left itself without a meaningful opportunity to exercise its discretion; the State failed to establish Gallman’s testimony would assist the trier of fact; and the probative value of the DNA evidence was substantially outweighed by the danger the evidence would confuse the issues and mislead the jury.
This is truly scary and outrageous. Freedom of the Press is vital to any free society.
Excerpts from the Article:
The Department of Homeland Security has compiled “intelligence reports” about the work of American journalists covering protests in Portland, Ore., in what current and former officials called an alarming use of a government system meant to share information about suspected terrorists and violent actors.
Over the past week, the department’s Office of Intelligence and Analysis has disseminated three Open Source Intelligence Reports to federal law enforcement agencies and others, summarizing tweets written by two journalists — a reporter for the New York Times and the editor in chief of the blog Lawfare — and noting they had published leaked, unclassified documents about DHS operations in Portland. The intelligence reports, obtained by The Washington Post, include written descriptions and images of the tweets and the number of times they had been liked or retweeted by others.
After The Post published a story online Thursday evening detailing the department’s practices, the acting homeland security secretary, Chad Wolf, ordered the intelligence office to stop collecting information on journalists and announced an investigation into the matter. Upon learning about the practice, Acting Secretary Wolf directed the DHS Intelligence & Analysis Directorate to immediately discontinue collecting information involving members of the press,” a department spokesman said in a statement. “In no way does the Acting Secretary condone this practice and he has immediately ordered an inquiry into the matter. The Acting Secretary is committed to ensuring that all DHS personnel uphold the principles of professionalism, impartiality and respect for civil rights and civil liberties, particularly as it relates to the exercise of First Amendment rights.”
Some of the leaked DHS documents the journalists posted and wrote about revealed shortcomings in the department’s understanding of the nature of the protests in Portland, as well as techniques that intelligence analysts have used. A memo by the department’s top intelligence official, which was tweeted by the editor of Lawfare, says personnel relied on “FINTEL,” an acronym for financial intelligence, as well as finished intelligence “Baseball cards” of arrested protesters to try to understand their motivations and plans. Historically, military and intelligence officials have used such cards for biographical dossiers of suspected terrorists, including those targeted in lethal drone strikes.
The DHS intelligence reports, which are unclassified, are traditionally used for sharing the department’s analysis with federal law enforcement agencies, state and local officials, and some foreign governments. They are not intended to disseminate information about American citizens who have no connection to terrorists or other violent actors and who are engaged in activity protected by the First Amendment, current and former officials said.
“This will just damage the intelligence office’s reputation,” Sandweg said, calling the decision to report on journalists “incredibly dumb.”
Officials who are familiar with the reports, and who spoke on the condition of anonymity to candidly discuss them, said they are consistent with the department’s aggressive tactics in Portland, and in particular the work of the Intelligence and Analysis Office, which they worried is exceeding the boundaries of its authority in an effort to crack down on “antifa” protesters to please President Trump. He and other senior administration officials have used that “anti-fascist” label to describe people in Portland and other cities who are protesting police violence, as well as others who have vandalized statues and memorials to Confederate officers that they consider racist.
The Intelligence and Analysis Office has for years been the butt of jokes among larger, more established agencies like the CIA and the FBI, who liken it to a team of junior-varsity athletes. The DHS office produces reports that are largely based on unclassified, often public sources of information that current and former officials have said are of limited use.
Murphy’s conclusions cut against the earlier DHS memo, which the Times reported, that said the department didn’t have enough information to know whether the Portland protesters were connected to anti-government groups that had a history of operating in the region.
Progress! The “duty to intervene” should not even be necessary, but, sadly, it is. Officers must know to do the right thing.
Excerpts from the Article:
New Castle County Council unanimously passed two police reforms Tuesday night after delaying them earlier this month. Many described the measures as just the beginning.
One ordinance bans the use of chokeholds by New Castle County police —except when an officer decides deadly force is necessary. The second requires officers to try to intervene when another uses excessive force, or face punishment as if they used excessive force themselves. Between Tuesday’s meeting and the previous one, primary sponsor Councilman Dave Carter modified the ordinances to clarify language and add training for use of chokeholds.
Carter said the tweaks were made in consultation with New Castle County Police Chief Col. Vaughn Bond, Jr. Carter mentioned during an interview last week that in the course of discussions, he modified the original duty-to-intervene draft to prevent punishment of officers who make a “good faith effort” but are unsuccessful in stopping excessive force.
“No one should be afraid that the police is going to beat them up because of the color of their skin, and that’s exactly what’s going on, and everybody knows it,” he said. “Delaware is part of these United States of America, and New Castle County is a part of Delaware. There’s nothing so privileged and great about Delaware.”
Mike Brickner of the ACLU of Delaware called them “preliminary commonsense changes that need to happen.”
“Really the key to establishing good police relations is trust,” he said. “And what we’re hearing right now is that a lot of folks in the community don’t trust policing right now. And that’s going to take a very long time and a lot of hard work to undo, but these ordinances are I think concrete steps to helping to build that.”
Ordinances have been introduced that would redirect funds from the New Castle County police salaries and benefits budget toward community initiatives supporting racial justice— and that would limit the release of information about arrested juveniles, including mugshots.
Council does not meet again until late August.