Monthly Archives: November 2012
It is a cardinal rule of ethics in the legal profession that the duty of a prosecutor is not to seek convictions, but to pursue justice — even if that pursuit leads to a dismissal or acquittal of charges. Sadly, that is less and less true in today’s world of winning at any cost….as the following news story illustrates:
19th Judicial District Attorney Offers Cash for Convictions
Arapahoe County, CO. – The 18th Judicial District Attorney, Carol Chambers, is giving bonuses to her deputy attorneys who tried more than five cases last year and have a conviction rate higher than 70 percent, 9Wants to Know has learned.
Critics say it’s unethical to give prosecutors a financial prize for winning a trial and may give defense attorneys a reason to appeal a case.
"The prosecutor’s ethical obligation is to seek justice for everyone," Colorado State Public Defender Douglas Wilson said. "Basing bonus pay of conviction rates flies in the face of that obligation and sounds a lot like the Old West bounties."…
The DAs for both of the metro area’s biggest districts believe paying for performance could leave the prosecutor interested in the outcome of the case.
"Our job is not to directly tie the conviction rate, trials or plea bargains to a monetary figure," First Judicial District Attorney Scott Storey said. "That would be like working on commission or something. And that’s not what we do."
The American Bar Association standards say a prosecutor’s duty is to seek justice, not conviction.
"What matters is that you go in there and you seek justice. And you do the best job you can and then you leave it up to 12 citizens to make a decision," Morrissey said.
How would you like to be accused of a crime…and know that the prosecuting agency has a bounty on your head — guilty or not?
Most drunk driving arrests take place at night, often after midnight. One reason for this is that many police officers engage in the illegal practice of staking out bars and restaurants from about midnight to "closing time", pulling cars over on some pretext as patrons leave and drive away.
It is during this period of time that the individual’s circadian rhythm is taking effect. The circadian rhythm is that 24-hour biological alarm clock in each of our bodies, most noticeable when we experience "jet lag".
Researchers have found that individuals will perform more poorly in tests during the low point of the circadian rhythm — that is, during the hours after midnight and into the early morning. It is just such tests — called "field sobriety tests" — that officers use to determine whether a driver is intoxicated or not.
Specifically, British physicians and psychiatrists reported that "the same blood alcohol level is associated with a significantly greater impairment of different aspects of psychological funtioning when achieved in the very early morning hours." "Circadian Variation in Effects of Ethanol in Man", 18 (Supp. 1) Pharmacology, Biochemistry and Behavior 555. The researchers concluded that "the differences we have found…must be attributable to circadian change and susceptibility of the body to its effect."
The drunk driving case rests heavily upon the subjective opinions of the arresting officer — the abilities of that officer to correctly assess DUI symptoms of intoxication: observations of driving, personal symptoms (slurred speech, flushed face, etc.), answers to questions, performance on field sobriety tests.
Just how expert is the average police officer at judging levels of intoxication in a DUI case?
To answer this question, researchers at Rutger University’s Alcohol Behavior Research Laboratory conducted a series of experiments. For purposes of comparison with officers, two groups of non-police witnesses were first tested. In one, 49 lay social drinkers sat in a room as various subjects were brought in one at a time for observation and questioning. Each subject had either consumed varying amounts of alcohol or had consumed nothing; each had been given tests for blood-alcohol levels. Each in turn answered questions from the lay witnesses until all were finished, then got up and left. Each of the 49 witnesses was then asked to judge each subject’s state of sobriety or intoxication.
The researchers’ conclusion: ”The assumption that social drinkers would prove to be accurate judges was not confirmed.”
In the second group, 12 bartenders were tested in the setting of a large cocktail lounge. Again, the researchers found that “the bartenders correctly rated a target in only one of four instances”.
The researchers then turned to 30 experienced DUI officers from various New Jersey law enforcement agencies. Separated into two groups, the first group of 15 officers were tested under laboratory conditions similar to those in the experiment involving lay social drinkers. The second group of 15 were tested under circumstances commonly encountered in a drunk driving traffic stop — at night, with the subject behind the wheel of a car, who is then asked to step out and conduct a series of DUI field sobriety tests. Results?
When police observers in the laboratory conditions were compared to social drinkers who had experienced an identical procedure, no difference in rating accuracy was found…Officers in the arrest analogue were somewhat more accurate than their colleagues in the laboratory condition but not significantly so.
The scientists concluded that “the results of the three experiments described here are not reassuring. All three of the subject groups studied — social drinkers, bartenders and police officers — correctly judged target levels of intoxication only 25 percent of the time.” Langenbrucher and Nathan, “Psychology, Public Policy and the Evidence for Alcohol Intoxication”, American Psychologist 1070 (Sept. 1983).
Over the years I've posted ad nauseum on this blog about the increasing disintegration of constitutional rights in DUI cases. See, for example, The DUI Exception to the Constitution. This has been particularly true of the right to due process and the right to defend oneself against the sacred breathalyzers. See Trial by Machine and Trial by Machine — but How Good Are the Machines?.
This abandonment of an accused citizen's rights is not, however, limited to the United States. Consider the following editorial from yesterday's Toronto Globe….
Accused Drunk Drivers Deserve a Chance to Defend Themselves Against Fallible Breathalyzers
Toronto, CN. Nov. 4 — If judges find a certain defence to a drunk-driving charge credible, is it fair that Parliament should take the possibility of that defence away? The Supreme Court of Canada said unanimously this week that the Conservative government’s 2008 removal of a common defence to an impaired-driving charge meets constitutional standards of fairness. It’s a troubling ruling – though at least the court made sure it’s still possible for accused people to have a realistic chance at poking holes in the readings of a breathalyzer machine.
This isn’t to question the seriousness of impaired driving in Canada. It continues to be a major problem implicated in more than a thousand deaths a year. But the very seriousness of the crime, and of the consequences of being found guilty, underscore why accused people need a real chance to defend themselves.
The machines, and the people who work them, are fallible, according to the Canadian Society of Forensic Science, which has worked closely with the Canadian government since the late 1960s on standards for breathalyzers. And the Supreme Court agrees – the possibility “is not merely speculative, but very real.”
The defence that the government abhorred – because it worked – was known as the “two-beer” defence: Accused people would claim to have had just two beers (or three, or one), and would obtain a toxicology report that at their height and weight, based on the amount they said they imbibed, the breathalyzer machine’s reading could not have been accurate.
The Supreme Court said there was a scientific “disconnect”; the breathalyzer machines work when in proper repair and when a trained technician is in charge, studies show; so the defence should not have been as effective as it proved to be. It seems a reasonable point. But then ask – why, if judges find the defence credible enough in individual cases, and judges are deemed by Canadian justice to be the experts in sifting evidence and determining the facts, should the defence be taken away? Isn’t that a disconnect, too?
The 2008 law that removed the “two-beer defence” would have made it almost impossible to defend against the machine’s reading. Accused persons would also have had to show not only a failure of machine or technician but that the failure led to the reading over the legal limit; and finally, they would need the two-beer defence to show that they weren’t over the limit. It verged on the impossible.
Instead, the court snipped out the parts it didn’t like. It will now be enough to raise a reasonable doubt about the machine’s functioning or of the technician who operated it. That will start a new era, according to Toronto lawyer Jonathan Rosenthal, of requests for disclosure of all manner of information about the machine and technician.
And at least we will not have machine justice.
Trial by machine. The future is here….