The Credible, the True, and the Inconceivable: Ashraf Tahimer v. the State of Israel

In May 2016, Mirwat Abu Jaleel, an Arab-Israeli woman, was horrifically stabbed to death eleven times in her bedroom in her home in Shefar’am. Her oldest son, Nasrat, told the police that he woke up hearing a struggle. As he exited his room, he saw his neighbor, Ashraf Tahimer, running toward him in the hallway, holding a knife in one hand and making a fist in the other. Ashraf hit Nasrat in the mouth, breaking one of his teeth, and fled the home through a window downstairs. Mirwat’s younger children told the police that they saw Ashraf enter the home through the same downstairs window, take a knife from a kitchen drawer, remove his shoes, and ascend the stairs to Mirwat’s bedroom. The police did not find Ashraf at home–he had fled–but the next day he surrendered. At his interrogation, Ashraf denied having had anything to do with the murder. Nevertheless, when the police searched the crime scene, they found Ashraf’s shoes in the kitchen. The court did not believe Ashraf but found the prosecution witnesses, Nasrat and the other kids, credible, and convicted him of murder.

Today I attended the oral argument in Ashraf’s appeal at the Israel Supreme Court. My long-time friend and colleague Hagit Lernau, a longtime senior veteran of the National Public Defender’s office and now a criminology professor at Haifa University, argued the case for the defense (she’s pictured above in her robe, getting ready for court) and so I tagged along to help her prepare and see the argument. The hearing proved to be a disquieting inquiry into questions of truth, credibility, biases, and heuristics. It’s as gripping and horrifying as a classic detective novel, and offers important lessons to anyone investigating and adjudicating crime.

Ashraf does not make for a particularly cuddly appellant. He has a long history of petty crime and heavy drug use. He is also quite impulsive and found it difficult to sit quietly during the hearing. He was also disliked in the neighborhood because of his lifestyle. But, as he repeatedly told the police and the factfinding court, he had no reason to kill Mirwat. They had a good neighborly relationship and, while she did not approve of his lifestyle, she was always kind and welcoming to his son. Indeed, he had serious disincentives: killing Mirwat would create a deadly conflict between his family and the Abu Jaleels, putting his children in danger of retaliation (indeed, following Ashraf’s arrest the Tahimer home was burned to the ground, and the entire family had to flee the town.)

By contrast, Mirwat’s family had ample motive to murder her. Mirwat was divorced and her ex-husband, Ibrahim, found a younger woman. Mirwat’s independent, open life was a threat to the patriarchal family structure. Arab Israeli women are overrepresented as murder victims, and divorcées are at a particular risk. Most murders of Arab women are never solved; out of those solved, most are perpetrated by a partner or other family member and related either to family honor or to retaliation for some offense committed by a man. In 36% of cases, the murder is witnessed by at least one child or another family member.

Given these statistics, which are well known to the police as part of the depressing picture of violent crime among Arabi Israelis, you’d think the investigative team would at least question the Abu Jaleels’ version. But they accepted wholesale the testimony of Mirwat’s family members, all of whom denied having had anything to do with her murder. They claimed that Mirwat and Ibrahim were on the path to reconciliation, and had met with a third party (some said a sheikh; some said a lawyer; some said three weeks prior; some said three days prior) to sort out their differences. The police never sought to confirm or refute this story. Ibrahim himself, who would’ve normally been the prime suspect, was conveniently out of the country when the murder took place (I’m told this is not an uncommon pattern in family honor killings–there’s already somewhat of a playbook for these crimes.) Nasrat, Mirwat’s son, even said that he could provide a motive for Ashraf to commit the murder: a few days before murder, Nasrat overheard Ashraf promise his son an Xbox if he improved his grades. There was an Xbox in the Abu Jaleel’s home–in Mirwat’s bedroom, in fact–and Nasrat testified that after he found his mother’s lifeless body in a pool of blood, he located the Xbox disconnected on the floor, put it back in place and reconnected the wires. This version of events was utterly refuted by forensics, who found that the Xbox had not been disconnected, reconnected, or moved at all recently. Even this considerable contradiction–suggesting a fabricated motive for the suspect–did not lead the police to doubt the Abu Jaleels or look elsewhere for suspects. They were focused on Ashraf as the one and only suspect.

The children testified that Ashraf had climbed up to their home through one of the windows. But the crime scene photos clearly show that the electric shutters are lowered all the way in all windows, and the children said that the family kept them shut (after being confronted with this problem, one of the children pointed out that the one shutter would sometimes be open to let in fresh air.) The act of climbing up the wall requires some dexterity. During the investigation, a police officer secured in a harness attempted to climb to the window and into the house, and while he was not initially successful, he did eventually manage to get in. However, on his way out he broke a fragile piece of the window, raising questions as to whether it would be possible for Ashraf to enter/exit and leave the window intact. But on top of all this, it turns out that Ashraf suffers from a shoulder prone to dislocation. An orthopedic expert testified at trial; his uncontested expert testimony was that Ashraf’s shoulder would have likely been dislocated by the effort (he gave that a 90% chance of happening) and, in fact, was dislocated later at his jail cell by the mere act of raising it.

At this point, you might wonder whether the entire debacle is unnecessary: surely, in the course of climbing into the house, walking to the kitchen, pulling out a drawer to get a knife, walking to the bedroom, and having a violent struggle with the victim involving copious blood, the perpetrator must have left forensic residue behind! The answer is: none was found. The forensic team lifted 27 fingerprints from the home, emphasizing the course that Ashraf allegedly took. 26 did not match his and one remained unidentified. No DNA of his was uncovered–no skin, no blood–and no blood smears were visible on the way from the victim’s body to the window. All prosecution witnesses attested that Ashraf was not wearing gloves at any point during the event. At the factfinding court, he prosecution argued (successfully, apparently) that Ashraf must have smeared away his own fingerprints, as well as the blood, when he climbed back out of the window, or that his criminal experience prompted him to clean up his own fingerprints as he went along. Such a course of action, for someone under drug influence and with a weak shoulder, defies credibility: did he hold himself up with the bad shoulder and wet-wipe his own fingerprints off as he went along?

We all know the legal rule that the absence of evidence is not evidence of absence. But scientifically speaking, we can sometimes learn from absence of evidence–particularly when the probability of finding the evidence would have been high. Prof. Lernau, who on top of being a terrific litigator has a curious scientific mind, wondered: how likely is it for someone to engage so thoroughly, in such a tactile manner, with a crime scene, and not leave a trace? There is apparently considerable variation among people in propensity for leaving fingerprints (it has to do with grease and moisture in the skin, etc.) and surfaces vary in how well they absorb and retain fingerprints. With the assistance of Dr. Naomi Kaplan-Damari, a forensic criminologist at Hebrew University, the defense team ran a little experiment. They instructed fifty staff members to touch similar surfaces to the ones at the crime scene. Even for the people less prone to leaving fingerprints, the odds of not leaving a trace were extremely small.

There was, however, one crucial forensic finding: a human tooth located at the top of the bed, where Mirwat had lain her head before she was attacked. The tooth did not belong to Ashraf; it belonged to Nasrat, Mirwat’s 17-year-old son. As you’ll recall, Nasrat told the police that Ashraf punched him in the hallway when fleeing the scene and dislodged the tooth. If so, how did the tooth make it to the bed? Nasrat claimed that he had reconnected the Xbox in his mother’s bedroom, but that proved false. He did, according to his own testimony, attempt to revive his mother alongside the other family members, but the body was at the entrance to the bedroom, about 2.5 meters (8 feet) from the bed. The tooth would have had to migrate from the hallway to the bed on its own, or it would have had to be dislodged during the resuscitation attempt (but not on the bed). Or, which would be a more plausible explanation, it would have broken off in the first place not as a consequence of a hallway fight, but during a struggle on the bed with the victim.

But let’s assume, again, that Ashraf escaped from the house the same way he got in–through the window, with no shoes on, and miraculously without smearing any of the copious blood from the crime scene or leaving any fingerprints or footprints on his way out. How did he get home? There are two paths leading from the Abu Jaleel home to the Tahimer home: one is short and leads to the front door, and the other takes a roundabout way and ends in the rear steps of the Tahimer house. The claim is that Ashraf snuck out that way because, as it happens, a nearby home has a camera mounted on the roof that continuously films that allley. For many hours before and after the supposed commission of the crime, only one figure is visible on camera. It is the blurred image of a man holding a knife. The man cannot be identified, and the police assumed it was Ashraf making his escape. This fit testimony from a neighbor, Omri Nadaf, who testified that he saw Ashraf heading to the alley.

Was it Ashraf? Apparently not–according to the prosecution’s own witnesses. Nasrat’s uncle, Wahel, was with his parents, locked in, during the murder. According to Wahel’s testimony, Nasrat, who discovered the murder, ran over and screamed that Ashraf had murdered his mom, and Wahel immediately grabbed a knife, ran out of the front door, and made it to the Tahimer home using the back alley. On cross-examination, Wahel agreed with the defense that he walked that path during the relevant time. As mentioned above, there is only one figure who walked there with a knife. It therefore must have been Wahel. But this would mean that the neighbor’s testimony about seeing Ashraf was wrong (mistaken or deceitful.) If the man in the alley was Wahel, this would also explain the inconceivable timeline by which Ashraf would’ve left the home, managed to get out of the window, make it to the alley, and somehow clean himself enough to appear nondescript on camera within two minutes.

It’s worth reminding U.S. readers that Israel has no jury system. Verdicts are given by professional judges and, in serious offenses, by a panel of three judges. The panel that convicted Ashraf wrote an extensive decision, in which they flat-out rejected the forensic and objective crime scene data and relied primarily on their credibility observations: namely, they believed the family and disbelieved Ashraf, and that was that. As we all know, appellate courts cannot substitute their own impressions of credibility for those of the factfinding forum, which is what the Supreme Court judges reminded Hagit at the hearing. A recent high-profile Israeli case, however, highlights the fact that credibility findings cannot stand when they contradict objective facts. The judges kept asking the same question again and again: how can the appellate court overcome the fact that four witnesses–including children–were all found credible? Hagit kept replying: then what do we do about the impossibility of climbing the window, the lack of forensic evidence, the location of Nasrat’s tooth, and Ashraf’s invisible escape back home?

The hearing highlighted some of the inherent tensions in evidence assessment, which apply to professional judges as well as to juries and laypeople. The first one had to do with the appropriate weight, if any, to allocate to the absence of evidence. The prosecution dismissed Dr. Kaplan’s probabilistic demonstration as “amateur fingerprint science.” This was a mischaracterization: it was an exercise in statistical probability. Of course, it is not a cardinal rule that any case lacking forensics must end in an acquittal; however, in situations where the expectation of forensics is extremely high, negative inferences from their absence are not only possible but logical. It shouldn’t take a huge taxonomical effort for an appellate court to separate their deference to credibility findings from their completely legitimate authority to deduce

While the judges listened attentively to the defense’s oral argument, some of them seemed extremely resistant to the idea of reversing the verdict, and it was obvious that the source of the resistance was the credibility issue. Two of the judges, at different times, said that they needed something more–something positive–to overcome the lower court’s positive impression of the witnesses. The barrier of overcoming the credibility findings sometimes threatened materially exculpatory evidence: at least one of the judges was willing to suspend disbelief about Nasrat’s tooth’s supposed path from the hallway to the bed because the alternative was just too hard to consider in light of the credibility issue.

This all boils down to a central defense strategy concern, which I discuss extensively with my criminal procedure students every year. When, as in this case, the defense argues that the crime was committed by a different perpetrator, the jury is confronted not with the basic challenge of criminal burden of proof–assessing the probability of one story by its own strengths and witnesses–but with a comparison between two different stories. Jury calibration of burden-of-proof is notoriously tentative as it is, and the natural and understandable tendency of a layperson confronted with two different versions of the same event is to compare them to each other and pick the more likely one–even if the comparative likelihoods are 60-40 and the likelihood of the prosecution’s story falls far short of the normal standard of conviction (90-10? 95-5? depends on who you ask.) The hearing made it plainly obvious that this human tendency to compare stories and disengage from the legally required calibration could not be easily overcome even by erudite, experienced professional judges. “But how do you expect us to buy,” they kept asking, “that an entire family conspired to frame Ashraf? Including four children, some of them little? And over the course of such a lengthy period of time? When in this version the victim’s own son is supposedly the killer, or one of the killers?”

The legally correct answer to this question is, of course, that the court does not have to “buy” this alternative story with certainty, nor does it have to find it more probable than the alternative (a man who cannot climb windows climbs and enters an apartment through a closed window, commits a heinous crime, flees an extremely tactile scene leaving not a shred of forensic residue behind him, and somehow ends up at home avoiding detection by camera on the only path he could’ve taken.) All the court has to agree to is that there is a five-percent, or ten-percent, chance that events could have unfolded according to the alternative story to acquit. That’s how reasonable doubt is supposed to work.

Thing is, the court’s resistance to the alternative story is understandable. It’s the stumbling block I kept hitting when we practiced oral argument the night before the hearing. To believe even a shred of the alternative story, one has to ascribe the Abu Jaleel family a level of sophistication befitting the villains in a highly contrived Agatha Christie novel. The family would’ve had to decide ahead of time not only on the honor killing, but also on the alibi for Ibrahim, the father (who would have to be out of the country). They would have to expect 17-year-old Nasrat to be a perpetrator, or at least a seriously involved accomplice, in the murder of his own mother. They would have to decide to frame Ashraf ahead of time. Wahel, who gave Ashraf a large quantity of drugs the day before (he testified about it) would have done so intentionally, so as to dull Ashraf’s senses and make him a convenient target. The family members would have to rehearse the young children extensively in the Ashraf story. After the chaos and destructive energy involved in the murder, as they supposedly ran over to the Tahimer home to take revenge, someone (Nasrat? Wahel? Someone else?) would need to have the presence of mind to take Ashraf’s shoes and place them in the kitchen. Nasrat would have to change his version of his encounter with Ashraf to fit the loss of his tooth. The neighbor, Omri Nadaf, would have to be contacted to provide a fictitious account of Ashraf’s escape. Everyone, including the kids, would have to stick to their version of events over the course of years.

This is a high cognitive hurdle, but two important factors can help overcome it. The first is what Holmes says to Watson in Conan Doyle’s The Sign of Four: “How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” The family conspiracy, while improbable, is possible; Ashraf as a perpetrator is impossible. The only possible conclusion is that the improbable-but-not-impossible event is what actually took place.

The second factor makes the improbable less improbable: there are well-known sociological realities about the modus operandi of family honor killings. Police officers, attorneys, and judges who investigate and adjudicate these cases are fairly familiar with these cases. Unfortunately, honor killings of Arab-Israeli women are extremely common. In 70% of the cases, family members are the killers; the remaining 30% usually involve some inter-family conflict, in which the woman’s murder is an act of revenge upon a transgression by the husband. In 36% of the cases, at least one child, and often other family members, witness the crime. There are known cases, including the one I reviewed in this article, in which adolescents and teenagers (more often sons, but sometimes daughters) kill their own mothers, and sometimes their younger siblings, by family command, fearful for their own lives if they refuse. In highly patriarchal families, a command from a father or uncle to tell a fictitious story is law for the kids. It is easy to manipulate young children into lying about an event, especially if they (hopefully) did not witness it in person. This was a highly patriarchal family, involving traditional polygamy patterns (Mirwat divorced Ibrahim after he added a younger woman to the family.)

When a judge says, as in this case, “I can’t believe that children could be complicit in this kind of murder-and-framing-conspiracy,” he or she are most likely thinking about the improbability of something so horrifying happening in their own family. Indeed, educated judges from affluent, successful families–most of the time Jewish-Israeli families–would find this horrid scenario very far removed from their personal reality and their surrounding social milieu. It’s important to remember that not every Supreme Court judge is appointed after a long judicial career in lower courts. Some of them are former academics or commercial litigators, who would not have encountered the catastrophe of misogynistic, patriarchal violent crime in Arab communities anywhere in their social or professional circles. And yet, entire cities and towns live in terror of these crimes, to the point that leaders in the Palestinian community feel helpless and call for the intervention of the very police force that oppresses them. My family, who lives in the north of the country and has many personal and professional connections with Arab Israeli citizens (my dad had scores of Palestinian colleagues, employees, and students from local towns and villages; as a judge, my mom interacted for decades with scores of legal professionals, defendants, victims, and witnesses from Palestinian communities) is intimately familiar with these realities, including lovely, law-abiding people who are desperately looking to move because they can’t let their kids out the door unsupervised. What happens in some of these towns mirrors the worst inner-city environments in decrepit skid-row places in the U.S., and honor-related fights between extended clans (“hamulas”) and within families echo the worst of U.S. gang violence.

How Arab-Israeli violent crime reached these virulent proportions of pathology and sophistication is a matter of debate and speculation. Some believe that successful interrogations and prosecutions that crippled the Jewish-Israeli organized crime underworld created a void, into which Arab-Israeli criminal enterprises stepped in. Others think that the lack of opportunities for Arab-Israeli adolescents, fueled by deep inequalities, racism, and animosity, create a natural pool of potential “soldiers” for these enterprises. Yet others speak of patriarchal cultural norms that are difficult to root out. People who are steeped in these crimes already know that they are committed with frequency, and that there is considerable community knowledge and expertise in committing them and escaping scot-free (only 24% of homicides where the victim is an Arab-Israeli woman are ever solved, compared with 84% of crimes in which the victim is a Jewish-Israeli woman.) This reality can help demystify the Agatha-Christie-like quality of the defense’s alternative story. But to accept it would mean to live in the real, unfortunate world, not in the idealized world in which some judges might live, in which women are free to divorce abusive husbands, live free and open lives, without fearing violent consequences from their own partners and children.

I have a final observation about what I saw yesterday. When Ashraf was brought into the courtroom, flanked by guards, several nasty bruises were clearly visible on his face. He grimaced in pain and found it hard to sit down, asking permission to stand for part of the hearing. Had I been the judge in this case, the first thing I would do would be to ask him, “how are you?” and “what happened to you?”. To my astonishment, not a single member of the judicial panel bothered to figure out the provenance of the bruises or evinced compassion toward Ashraf in any way. I don’t think this is entirely unrelated to the legal aspect of what happened in this case.

Mourning Jeff Adachi

A great light has dimmed. San Francisco Public Defender Jeff Adachi (Hastings ’85) has died, leaving behind a tremendous legacy of advocacy of the highest quality for the indigent and disenfranchised. The Chronicle reports:

San Francisco Public Defender Jeff Adachi, a renowned advocate for the accused and an outspoken watchdog on police misconduct, has died. 

He was 59. 

Mayor London Breed confirmed Friday night that Adachi had died, saying that San Francisco had “lost a dedicated public servant.” He was the only elected public defender in California. 

The exact circumstances and cause of Adachi’s death were not immediately known, but sources said he died of a heart attack. 

“As one of the few elected public defenders in our country, Jeff always stood up for those who didn’t have a voice, have been ignored and overlooked, and who needed a real champion,” Breed said in a statement. “He was committed not only to the fight for justice in the courtroom, but he was also a relentless advocate for criminal justice reform.
“Jeff led the way on progressive policy reforms, including reducing recidivism, ending cash bail, and standing up for undocumented and unrepresented children.”

What a shocking loss, and what big shoes for all of us to fill. Jeff fought injustice and cruelty at every junction; I encountered him near San Quentin, working to abolish the death penalty, and at the courts fighting against cash bail. I found him in reentry meetings advocating for clean records and at the helm of realignment, probation, and community corrections. San Francisco is a beacon of common sense in an ocean of California counties that still massively incarcerate largely because of him. He will be, and is already, gravely missed.

Prosecutors in Orange County Sued for Obtaining Unlawful Confessions

More distressing news from the OC. The Guardian reports:

Prosecutors and sheriff’s deputies in California’s Orange County used jailhouse informants in an extraordinary and long-running scheme to illegally obtain confessions from criminal defendants, the American Civil Liberties Union (ACLU) is alleging in a new lawsuit. 

The suit, filed early Wednesday, alleges that the district attorney’s office and sheriff’s department in the suburban county south of Los Angeles routinely employed prisoners – including hardened gang members – as informants and used “threats of violence to coerce confessions” from defendants, violating their rights to an attorney. 

The ACLU cited a mountain of evidence, amassed in criminal cases over the past five years, that prosecutors obtained material illegally, suppressed parts favorable to the defence, and sought to cover up the existence of the scheme. 

“For 30 years, the Orange County sheriff’s department and district attorney’s office have been operating an illegal informant program out of the jails,” the ACLU lawyer Brendan Hamme told the Guardian. “They’ve used it to coerce information from defendants, including with threats of death, and at the same time they’ve been systematically hiding evidence of that program. These sorts of tactics are offensive to basic constitutional principles and ethical duties.”

The sensitivity of using jailhouse informants is well known and well documented. Whether the choice of this dubious, and often unreliable, method for obtaining information is malicious or attributable to tunnel vision, it raises very serious questions about dereliction of duty on the part of those who have the most power in the criminal justice system.

With Great Power Comes Great Responsibility

Wry Craigslist ad created in the aftermath of the Malheur takeover acquittal.

My first reaction upon hearing of the acquittal of the defendants involved in the armed takeover in Oregon was probably similar to yours, gentle reader: I saw no legal argument for acquittal and it was plain as day to me that what happened here was jury nullification (despite what this juror says here, I find myself incredulous that it was difficult to deduce intent from what transpired there.) It was a powerful reminder of the unchecked and untamed potential that lies beneath the legal structures we have built. The right to a jury of your peers also has a built-in, hidden-from-sight extension, which is the right to vie for the kind of peers who might be sympathetic to you even when the law is not.

The web is ablaze with cynical commentary and comparison memes, and arguments of white privilege. But what has happened here is no different–legally speaking–than what happens when people follow The Wire creator David Simon‘s call, or, for that matter, critical race theory scholar Paul Butler‘s call, to nullify in drug cases, or in cases involving defendants of color.

The constitutional trial rights we all have apply universally: there is no boilerplate section in the Bill of Rights that restricts them only to defendants and causes we like and support. This is, in part, why I opposed the ban on grand juries in police violence cases and signed a letter against Judge Persky’s recall: When we take away justice and discretion “only” in cases of defendants we dislike, like police officers or entitled frat boys, we shouldn’t be surprised when these rights disappear for defendants we do like and support.

Nullification is not a constitutional trial right, but it is an implicit power that comes with the secrecy of jury deliberations, their exemption from providing reasons for their decisions, and the inability to appeal acquittals in the U.S. criminal justice system. With great power comes great responsibility, and when we call for the use of this power for causes we believe in, it shouldn’t be too shocking that people who vastly disagree with us use the same power for causes they believe in.

So, is nullification the tool of armed white supremacists, lynchers, and antigovernment insurgents, or of racial justice protesters and war-on-drugs opponents? There’s no way to measure who uses it more, because jurors interviewed after trial are very unlikely to admit that they nullified. Everyone wants their decisions to be perceived as legitimate. Without actually knowing what happened in the jury room and inside the head of each juror, we can never know with absolute certainty–even when it seems obvious–whether they nullified, misunderstood the law, misunderstood the (often badly phrased) jury instructions, or any combination of these factors. We are also unlikely to be able to reproduce and measure this in mock jury experiments, because I think jurors nullify in cases that matter to them a lot emotionally, and experimental conditions will not produce that amount of passion and anguish. In the absence of data on this, we have to assume that juries do this, and keep in mind the knowledge that it can be used by anyone, for any goal, to support any political agenda.

The one thing to learn from this, I think, is that the outcome in highly political contested cases depends on the skills, science and juju that went into the jury selection process, more than on those that went into the trial–and that holds true for all of these cases, sympathetic and antipathetic alike. Which is an excellent reason for every lawyer, on either side of the adversarial process, to learn the art and science of voir dire.

Foster v. Chatman and the Limits of the Sayable

This morning, the Supreme Court decided Foster v. Chatman, a case involving race considerations in jury selection proceedings in Georgia.

There are two types of challenges that the prosecution and the defense may use to disqualify prospective jurors from the panel: for cause challenges, in case there’s evidence that the prospective juror is biased and might not be able to decide the case fairly, and a limited number of peremptory challenges, which either side can use for no express reason at all. There is one limitation on the use of peremptories: under a 1986 Supreme Court decision, Batson v. Kentucky, race is not an appropriate reason for a peremptory challenge (J.E.B. v. Alabama extended this decision to gender.)

In cases in which a party suspects that the other party is disqualifying jurors due to their race or gender, that party needs to prove a prima facie case that there is a systematic pattern of disqualification. If successful, the ball moves to the other party’s court, and they have to provide a race-neutral (or gender-neutral) reason for the disqualification. The reason need not be a good one; after all, if there were a good reason they could have used a for-cause challenge. It just needs to be unrelated to race or gender. Then, the court has to decide whether the challenges were race or gender based.

Foster, an African-American man, was charged with the sexual assault and murder of a 79-year-old white woman. The prosecution, which under Georgia law has ten peremptory challenges, used nine of them, and four of those were used to strike all four black prospective jurors. Foster immediately lodged a Batson challenge, which the court rejected. And here is where things get dicey.

At the time of trial, the prosecutors provided various race-neutral reasons for their use of peremptory challenges, relying partly on their perception that some of the black jurors were hesitant about the death penalty (which was on the table, given the severity of Foster’s crime.) However, on appeal Foster was able to produce the papers on which the prosecutors scribbled notes for themselves. You can see a section of one of those at the top of these post. The prosecutors marked black jurors with a “b” next to their name. In one occasion, a prosecutor scribbled, “no black church” next to a juror’s name. The author of those “b” letters and other comments could not be ascertained, but it had to be someone in the prosecutor’s office.

The Supreme Court decision analyzes carefully the race-neutral reasons the prosecutor provides, and shows that these were pretextual. Chief Justice Roberts’ method of analysis is to compare the black jurors to white counterparts on the panel who had similar circumstances and, yet, were not disqualified. In the Opinion of the Court, he therefore finds these reasons pretextual, “reek[ing] of afterthought”, or in short: a mere coverup for the real reasons for the disqualification: race, the reason expressly prohibited in Batson.

From a doctrinal perspective, the decision in Foster is the correct one. I have no doubt in my mind that they got the facts completely right. There is a clear contradiction between the reasons the prosecutors proffered for the disqualifications and the reasons that their paperwork clearly suggests. Their complicated race-neutral explanations easily fall apart when comparing jurors to each other. The court’s thorough analysis is a great example for why we need federal review of state practices: federal courts are removed from the judicial and legal climate on the states, and this is especially important in the context of racially controversial proceedings.

It’s also a decision that supports solid values, and one that heralds back to the reason the death penalty was temporarily abolished in Furman v. Georgia in 1972: jury selection and trial processes designed to disfavor African American defendants.

And yet, I’m left feeling very uneasy about the lessons prosecutors might learn from Foster. There’s no reason to pretend, or be facetious, about consistent social science findings, which confirm again and again that people’s demographics–including their race and gender–correlate significantly with their criminal justice perspectives. In experimental settings, when confronted with incidents of police brutality, race is a significant predictor of whether prospective jurors support the police or the suspect.  In mock jury experiments, white male jurors significantly and disproportionately sentence black defendants to death, and influence other jurors to do the same. According to Gallup data, men support the death penalty significantly more than women. With race, the differences are even more stark: whites support the death penalty 75 to 24, whereas blacks oppose it 49 to 44. I could cite dozens, if not hundreds, of studies coming to the same conclusions.

This shouldn’t come as a big shocker to anyone. The reason race is influential in forming criminal justice opinions is the racialized nature of criminal justice itself, its history as a system of racial domination, and its massively disparate impact based on race. Some might not like Paul Butler’s prescription to fellow African-American jurors to nullify in every case involving race, but at least he’s honest about the fact that many folks see our system of incarceration as the battlefront in race war–and with substantial justification.

So what is really going on? Prosecutors, defense attorneys, and judges, all know what social science clearly tells them: that racial identity, and racialized life experiences, are one important and influential way in which people form opinions about the world. They will not excise this piece of information from their memory. What they have learned this morning from the Supreme Court is that they need to find better ways to hide what they know. Indeed, post-Foster, we probably won’t see better race-neutral explanations; we just won’t see racial notations on papers, and whatever texts the prosecutors might send each other under the table will be deleted before discovery proceedings find what’s there. Maybe the prosecution will recur to various real or perceived proxies for race (neighborhood, income, family structure), and maybe, as is increasingly the case, professional trial consulting firms and software will come up with some corporatespeak or sciencespeak that will appear to be racially neutral. Because that’s what we do every time a word becomes offensive and unsayable: we put it through the laundromat and it comes out worded differently, within the realm of the sayable, and the discrimination creeps underground.

This is even more depressing considering that the legal system itself has a massively ambivalent approach to the social science truth that demographics impact opinions. Under Taylor v. Louisiana, when the legal process excludes a distinctive social group (again, the clearest cases are race and gender), we don’t like this, and the court says that we lose a “distinctive flavor” or a special perspective. In that context, we’re perfectly comfortable admitting that a person’s experiences–including her race and gender–might impact the way she sees a criminal justice issue. But when the day comes to pick the actual jury, when lawyers draw the exact same conclusion, and use it in a partisan fashion, we get upset and would like them to do a better job pretending that they’re not doing that. The difference is that blocking groups of people from the venire and disqualifying individuals, whom you can presumably question to detect bias, are two different types of enterprise. And yet, how much can you possibly learn about a stranger’s inner life and worldview in open court?

The bottom line: this decision, while correct and certainly better than the opposite, is a mere band-aid on a problem that is intractable. I cannot see, in the current climate or in any future version of it, a time in which people’s racial identity will not be inexorably linked to their criminal justice opinions. Teaching prosecutors to do a better job hiding these considerations from view does not make them less racially motivated; they’ll keep their opinions, which happen to be aligned with scientific findings, and become so good at covering their tracks that post-Foster defendants will have a difficult time uncovering them. Holding our nose doesn’t make something smell better; it just helps better disguise the smell. If the current presidential campaign teaches us anything, it’s that hiding our ugly racism problem under the rug, in the realm of the unsayable, has done little to improve racial equality in the United States. What we’re seeing now, when Trump makes the unsayable sayable, is merely the ugly truths that were there all along.

Podcast Review: Serial

On the last episode of the acclaimed podcast Serial, Sarah Koenig speaks to a retired police detective and asks him whether any murder case would raise the difficult questions raised by the case she focuses on. The detective replies that most cases are straightforward and few would present so many difficulties.

But is that true? It’s hard to tell. After all, in his book In Doubt, Dan Simon provides a conservative estimate of the percentage of wrongful convictions: about 4-5% of all convictions. Rabia Chaudry, a family friend of Adnan Syed, thinks that his conviction for the 1999 murder of his high-school girlfriend, Hae Min Lee, is one of those. She enlists Sarah Koenig and the team to investigate, and they spend hours upon hours reinterviewing witnesses, digging up forensic evidence, and recreating the crime.

Indeed, Serial, and the subsequent show by Syed supporters Undisclosed, have raised considerable public interest in Syed’s case, which had only provoked some local interest at the time. And the latest news are that Syed has been granted a hearing to present new evidence. Which leaves me wondering the same thing that Koenig asked the detective: how many other cases, murder or otherwise, would merit a rehearing if they received the benefit of hours of careful, NPR-quality attention?

In his famous 1965 essay Normal Crimes, David Sudnow shows how defense attorneys manage to dispose of cases in negotiation with prosecutors. Their professional expertise allows them to fit each case to an existing prototype of cases, thus facilitating the attachment of a “price list” to each case. This means that the cases don’t really receive individual attention, leaving the bulk of professional time and attention for the few “abnormal” cases that go to trial. Whenever we hear about a dramatic exoneration, what we envision is someone who had been aggressively litigating and protesting for years, and who had been railroaded by the police and prosecution.

The interesting thing about Serial is that it doesn’t try to tell one of those stories. I wouldn’t go as far as to call it a “normal crime”, but the show drags into the limelight what would appear to be fairly run-of-the-mill in terms of criminal trials. It is not a defense-oriented, the-government-is-the-worst-criminal sort of narrative that we’re used to hearing in cases of serious miscarriage of justice, such as the West Memphis Three and so many others. No one is particularly at their best, but no one seems to be at their absolute worst, either. Yes, there’s some racism; there’s some unexplained defense behavior (this is important, because habeas review is almost impossible without proof of ineffective assistance of counsel); but none of it rises to the level of shock we’ve been used to experience when reading Innocence Project stories.

To me, that’s the strength of Serial: showing the banality of a situation in which the factual disposition remains unclear. And it does so through Koenig’s persona, who remains agnostic about the facts. In a way, Koenig is a stand-in for a diligent juror; she repeatedly refers to procedural and technical details as “boring”, and classifies the evidence into “bad for Adnan” and “good for Adnan”. Her congenial, soft manner never pushes the witnesses to the point of big revelations (to the extent that those are even possible, fifteen years after the crime.) When she says, at the end of the series, that she feels like shaking up the witnesses “like an aggravated cop”, you almost wish she had done that in the previous eleven episodes.

And yet, it is precisely this softness and indecisiveness that lends the show its charm and magic. I haven’t yet listened to Undisclosed, and I’m hesitant to do so, because Koenig’s agnosticism makes me feel more respected and active than an enraged partisan party trying to enlist me to Syed’s defense. Which brings me to another thought: what Koenig is trying to accomplish resembles the role of the inquisitor judge in a civil law country: impartial, out there to find out What Happened. The adversarial system calls for partisanship under the assumption that the competition between the parties will yield the best evidence. But the resulting games of obfuscation result in anything but, and Koenig’s interviews with the jurors reveal just how much they were manipulated by the parties throughout the trial–regardless of whether they reached the factually correct answer.

I don’t know what will happen to Syed now that his case has been picked up. But I wish that many more seemingly simple, run-of-the-mill cases received this careful attention–if not from investigative journalists then from more active jurors and with less partisan manipulation.

What Happens If the Court Disallowed Your Attorney from Attending a Batson Hearing?

The Sixth Amendment requires that defendants be tried by a jury of their peers; this raises serious questions when partisan interests bring racial considerations into the choice. Batson v. Kentucky, decided by the Supreme Court in 1986, limited the ability to use peremptory challenges (which allow each party to disqualify jurors without providing an explanation) when the pattern of challenges indicates racial (or, as later decided, gender) bias. The procedure under Batson requires three steps: the other party (typically the defense) points to a systematic pattern of racial exclusion; the excluding party (typically the prosecution) provides race-neutral explanations for the exclusion; and the court decides, based on totality of the circumstances, whether the challenges can stand.

Shortly after Batson, in 1989, Hector Ayala was convicted of a triple murder in the context of a robbery in San Diego. At the voir dire stage of his capital punishment trial, his attorney objected three times to repeated use of peremptory challenges by the prosecution against black and latino prospective jurors. Each time, the prosecution asked that the defense leave the room, arguing that they didn’t want to expose trial tactics to the defense. Their actual race-neutral explanations for the peremptory challenges were concerns about criminal record, concerns about unwillingness to apply the death penalty, and personal history in following and being involved in controversial trials. The judge agreed to let the peremptory challenges stand. Ayala was convicted and sentenced to death.

Today, the Supreme Court decided Davis v. Ayala, siding 5:4 against Ayala.

The Court was willing to accept, as a basic premise, that Ayala’s constitutional rights were violated; but that is not enough to merit a reversal. Under the law governing post-conviction remedies, Ayala had to also overcome the “harmless error” doctrine.

Here’s how harmless error works: On appeal or on habeas, when someone successfully establishes that their constitutional rights were violated, the court also cares about whether, had everything gone well, the result of the proceeding would have been different. The first distinction the court makes is between “structural errors” and “trial errors”. The former lead to immediate relief; with the latter, we’re concerned about how the error might’ve affected the outcome. It’s easier to prove that it did on appeal (where you only have to create reasonable doubt that it might have) than on habeas (where the burden of proof is higher.) Here’s a basic illustration (click on the graphic to enlarge):

If this was not complicated enough, let’s throw in an extra issue: in federal courts, where collateral review (habeas) happens, the procedure is also governed by AEDPA, which says, among other things, that the federal courts will not intervene in state court decisions unless they were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” This standard is said to incorporate the heightened test for collateral reviews set in the diagram above.

The Court then examined whether the county court in the original trial was right in deciding that the challenges to the jurors were neutral. Here, it goes into the questioning of the jurors, finding that, even if there were white jurors who answered similarly to the voir dire questions, there were still differences in terms of how willing they were to apply the death penalty. Or, more accurately, these similarities are not enough to meet the burden of proof that the challenges were racial and resulted in a different verdict than if they hadn’t been allowed.

It is important to flag an important issue here: Under Witherspoon v. Illinois, it is perfectly okay to dismiss for cause jurors that are absolutely, 100% opposed to the death penalty, though it is not okay to dismiss for cause jurors that are merely reluctant to impose it. But, tactics-wise, if you have a juror that seems reluctant, albeit not reluctant enough to allow for a Witherspoon strike, you can certainly use your peremptory challenge on him. It’s not good enough for a for-cause challenge, but it is a race-neutral, and thus legitimate, excuse for a peremptory challenge.

But what about the defense attorney’s absence when the prosecutor articulated these race-neutral reasons for exclusion? The Court argues that, during the interrogation of the witnesses, the defense had ample opportunity to impact the record in a way that would indicate that the peremptory challenges were based on race. Before the prosecutor offered the explanation, the defense had an exchange with the court in which they sought to prove that the prospective jurors’ reactions did not differ from those of their fellow prospective jurors.

So, Ayala loses. But what is interesting here is that Justice Kennedy files a concurrent opinion, in which he talks about the “side issue” of Ayala having been in solitary confinement (“administrative segreagation”) on death row for more than twenty-five years. He says:

[I]f his solitary confinement follows the usual pattern, it is likely respondent has been held for all or
most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. . .  It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison.

. . . 

[D]espite scholarly discussion and some commentary from other sources, the condition in which prisoners are  kept simply has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach the courts. . . Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however, for them to take into account, when sentencing a defendant, whether the time in prison will or should be served in solitary. So in many cases, it is as if a judge had no choice but to say: “In imposing
this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.” Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or

Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.

After citing numerous scholarly articles about the horrors of solitary confinement, Kennedy continues:

Of course, prison officials must have discretion to decide that in some instances temporary,
solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exa cts a terrible price . . . [including “anxiety, panic, withdrawal, hallucinations,self-mutilation, and suicidal thoughts and behaviors”]. In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” . . . There is truth to this in our own time.

This commentary, combined with his compassionate majority opinion in Brown v. Plata, in which he cited horrific neglect in California prisons and included photos, marks Kennedy as the guardian of dignity whenever prisons are concerned. In his recent book Mass Incarceration on Trial, Jonathan Simon predicts a “dignity cascade” that would hopefully lead to change in prison conditions. If that is true, Kennedy will be the herald of this cascade, and this segment indicates his intention to welcome such cases and provide real succor to those who need it most.

Public Defender Arrested in Court!

So, this happened today: Two guys were arraigned for petty theft charges. Cops showed up and started asking them questions about an unrelated robbery and taking their pictures. The defense attorney intervened, and this is what transpired:

A short version of what happened, including my commentary, is already on the Chronicle. Since people already know about this, and I therefore can’t use it for the perfect exam question that it is, here’s my analysis:

A. Did the cops violate the clients’ constitutional rights?

A. 1. Sixth Amendment. 

In “criminal prosecutions”, that is, after a person is formally charged, he or she is entitled to legal representation. This means, under Massiah v. U.S., that once the person has retained a lawyer, the police is not allowed to elicit information from him/her. But: The Sixth Amendment is offense-specific, which means the cops *can* approach the person regarding an unrelated offense. So far, what the cops did was kosher.

A. 2. Fifth Amendment

But people also have a privilege against self-incrimination, and when under custodial interrogation, they should be Mirandized so that they know they may remain silent and consult with an attorney. Was this “custodial interrogation”? sticky. On one hand, these guys are not under arrest; they are merely standing in the court hallway. On the other hand, the cop says, “you’ll be free to leave when we’re done”, which presumably means they are not free to leave at the moment. And, does asking for names and taking pictures count as “interrogation”? does it produce “testimonial evidence”? If so, they should have been Mirandized. My instinct, lamentably, is that it doesn’t. No custody, questionable interrogation.

B. Was the lawyer allowed to intervene?

Even assuming that there was a violation of the clients’ privilege against self-incrimination, under Moran v. Burbine the privilege belongs to the client, not to the lawyer. The clients should have stopped the interrogation and asked for the lawyer, not vice versa. Of course, this is ridiculously unrealistic–who better than the lawyer to help people with their rights? But there you have it.

C. Should the cops have arrested the lawyer?

Even if the lawyer did not, constitutionally, have a right to intervene, the arrest is ridiculous. There’s an argument there, but the lawyer is not being violent or disruptive in any way. The cops clearly got carried away.

All the other stuff that is going on in the political chatter–racial profiling, zealous representation, yada yada–strikes me as nothing more than political flourish. The bare bones of the legal situation are, I think, as I stated above. Thoughts?

A Jury Trial in Brazil

On September 3, 2008, Marcos Venicius Amon Barbosa finished his 48-hour shift at the shipyard. Before driving home, he stopped for a drink. Shortly after he resumed his trip, he ran a red light at an intersection in Vitoria, killing one woman and injuring eight more people.
Today, six years after the event, I attended his trial for vehicular manslaughter at the First Criminal Department of Vitoria. I was graciously invited by the prosecutor, Daniela Moysés, whom I had met the day before on our prison tour. Prior to her impressive legal career, Daniela had been a civil engineer, which requires five years of study in Brazil, and after a few years of working as the engineer of the court system she decided to change direction and studied law at UFES (another five years of education!). After passing a special competition for a prosecution position, she worked for several years in a rural area, and transferred to Vitoria as a special jury prosecutor.
In Brazil, jury trials are reserved only for crimes against life that involve criminal intent or recklessness. The state selects 25 people to serve on a jury, and they serve for two months. Every trial requires only seven jurors, which are elected from the 25-person panel by way of lottery. Employers have to eat up their employees’ two-month absence, even though they are unhappy about it. It is a big commitment, which is why Judge Victor Ribeiro Pimenta started the hearing by thanking everyone for their service.
At this point, after several weeks, the judge, the prosecutor, and the jurors know each other fairly well, and the judge told me that he tries to make it a positive experience for them even though the trials revolve around heavy matters. So, he joked with them a bit before the defendant was brought in.
Escorted by the military police, the defendant sat in front of the court on a chair with no table. His attorneys sat at a table to his left, requiring them to get up and approach him if they wanted to tell him something or confer with him. Today, he had three defense attorneys, all private, to speak on his behalf.
Then, the judge ran the lottery. He put labels with the jurors’ names in a special box, shook it, and removed labels one by one.

For each juror who was selected, the judge asked the defense attorney and the prosecutor if they had any objections. Each side gets three strikes, all peremptory, and they don’t need to offer an explanation. The prosecutor objected once, to a man whom she and the other prosecutors had seen falling asleep at the trials. I asked whether the challenges are sometimes used strategically. Daniela said that, in a drunk driving case, she preferred female jurors, whom she felt would be less sympathetic to a drinking man then male jurors. She got four women and three men. As each newly selected jurors stepped to the jury box—two rows of chairs behind tables—they wore black robes. The judge then announced the “jury winner”—the juror whose number had come up most frequently in the history of that particular panel—and awarded her a box of chocolates as gratitude for her service.

Everyone smiled and clapped. It was a nice, warm gesture to alleviate the stress and gravity of the trial to follow, and was very characteristic of the way Judge Pimenta runs his courtroom, always adding a smile and levity to the situation. Of course, the only person not laughing was the defendant, and conscious of his anxiety, Daniela muted her reaction to the joviality. Judge Pimenta swore the jurors one by one.

From the moment of selection, the jurors are prohibited from communicating with each other about the case. Deliberations are forbidden, and each juror votes secretly according to his or her own conscience.
Prior to the jury selection, the prosecution and defense conferred briefly on testimonies. Out of the eight surviving victims, four showed up for the trial. One of them testified that the traffic light was yellow when the defendant’s vehicle entered the crosswalk. The defense wanted that victim to testify. However, said the judge, if that’s the case we’ll want to testify all of them, and the rest will testify the light was red. Daniela didn’t want the witnesses to testify; she was concerned that they would go off on tangents and be unhelpful. One of them even said, shortly after arriving to the courtroom, that she did not want to see the defendant. The bottom line was that no witnesses testified at all.
The jurors were handed copies of the accusatory document, which already includes summaries of the evidence against the defendant and the judge’s “pronúncia” – the decision to bring the case to the jury in the first place. They were given some time to read it, and one of the court workers brought in a big tray with little cups of strong coffee for everyone to sip while they read. All parties, except the defendant, were served coffee, and small trays of cookies for everyone followed. Food is very meaningful in Brazilian culture, and eating together is an important social ritual. At cookie time, Daniela explained to me that the judge had the discretion to close the case based on police evidence, and sometimes does, and also the discretion to decide that the case was not befitting a jury panel and should be sent before the judge.
After the jurors familiarized themselves with the facts, the judge asked the defendant a few questions about his work, familial status, etc. He explained to the defendant that he had the right to testify and very respectfully presented everyone—the jury, the prosecutor, even me—to the defendant, as if we were all seated in the judge’s living room. He then asked the defendant whether he wanted to testify. The defendant replied that he did not, and that his testimony in the police station—in which he admitted to being drunk and falling asleep behind the wheel—could speak for him. He was visibly anxious and very miserable.
The judge allowed the prosecutor to speak, and she started by acknowledging every single person—even me—by name. She smilingly introduced the defense attorneys, referring to each by name, and gently needled them about being “three against one”. She started by expressing thanks to the jurors for their important service, and ended by saying to the defendant that we all wanted justice and that we were hoping to be fair to him.
Then, she proceeded to present to the jury her theory of the case. In the absence of witnesses, the attorneys were allowed to give lengthy speeches to the jury, walking them through the evidence. I was told that, had there been witnesses, they would first be examined by the judge to give their version, then by the prosecutor, and then by the defense attorneys. Parties are allowed to cross-examine the other side’s witnesses. Attorneys could object to questions and the judge could disallow them, and often judges would disallow questions on their own, not prompted by a party’s objection. In general, the judge plays a much more active role in conducting the trial, getting up frequently from his chair, conferring with the attorneys, addressing the jury, and attending to administrative matters (it also is possible that Judge Pimenta is particularly lively and engaged.)
In this particular case, the speeches pertained to an interesting question of substantive criminal law. Brazilian law allows for two types of criminal intent: a desire that the result occur, which is the equivalent of first/second degree murder mens rea in American common law, and awareness of the possibility that the result might happen. According to the prosecutor, this case fell into the latter category. Because the defendant had just left his shift and then decided to go drinking, he must have been aware of the possibility that he could commit an accident, and therefore assumed the risk of doing so. She combined her explanations of criminal doctrine with testimonies of the victims in the case, and the defendant’s own testimony in the police station. The jury attentively followed her, flipping through their materials. While obviously sympathetic to the victims and their suffering, the prosecutor was also sympathetic to the defendant, especially given the long time that had passed since the accident. After her speech was finished, she and I discussed her theory of the case. Brazil does not have plea bargains, except in very small cases, where they are legally proscribed “discounts” for pleading guilty and/or for providing information about the crime. Had the Brazilian system allowed them, she would probably had agreed to a guilty plea to a lesser charge of homicide, even though she thought her theory of the case was sound and the defendant acted with “conscious negligence” (the equivalent of recklessness in common law), because of the time that has passed since the accident and its effect on the defendant. She therefore told the jury that her argument was doctrinal-technical, but that they should vote with their conscience. She thought that her lucid but tempered argument may have communicated to the jury that, as opposed to other homicide cases they had seen during their two-month tenure, this one was not one of the serious ones.
After the prosecutor finished, the first of three defense attorneys, Joao Angelo, rose to speak. Like the prosecutor, he started his speech with a very gracious address to everyone in the room (including me). He thanked the prosecutor for her “calm and respectable” presentation (perhaps hinting to the jury that even the prosecutor was not out to get the defendant.) He then proceeded to argue the case. He spoke mainly of two things: the fact that the defendant obviously had not desired the lethal outcome and did not seek it, and the suffering he had been through in the years since the accident. Some of the argument was legal, but for the most part it was a plea for clemency. Criminal procedure in Brazil allows the prosecutor the opportunity for rebuttal, but doing that opens the door for a subsequent rebuttal by the defense. Because she didn’t feel the case merited a severe outcome, Daniela quietly made the decision not to rebut.
After the defense attorney’s speech, we all broke for lunch. When the judge invited me to eat with them—which was very kind of him—I didn’t quite know where we were headed. It turns out that, on days in which trials are heard in the morning, everyone—the judge, the prosecutor, the defense attorneys, the jurors—share lunch together in the courtroom, sitting around a large table. The court employee in charge of the jury, who also wears a little black robe, arranges for a very nice and rich meal, and so we all chatted amicably around the table, eating roasted chicken, rice, vegetables, plantains, and manioc flour. There was a tacit agreement that no one spoke about the case, and people just had a nice, companionable lunch together for almost an hour before the trial resumed.
When we returned to our seat, the two remaining defense attorneys proceeded with their argument. Their arguments were fairly theatrical and exaggerated, but their essence was the same as that of the first attorney: that the defendant should receive clemency. The second attorney even mentioned that the aftermath of the accident drove the defendant to a suicide attempt, which was not proven in any external materials (and the jury might or might not have believed.) He was divorced after the accident, but we did not know whether the divorce was related to the accident. The prosecutor felt that the attorney misquoted her, arguing a point of law she hadn’t actually made, but she clearly prioritized fairness in the defendant’s case over an ego battle and decided to let it go.
As the defense attorneys argued their case, the judge typed up a list of interrogatories for the jury. It was titled “Quesitos”, and for each of the nine victims it listed four questions:
1.     Had the victim suffered an accident?
2.     Did the defendant drive the vehicle that caused the victim’s death?
3.     Did the defendant assume the risk that he might cause the accident?
4.     Does the jury choose to absolve the defendant?
Questions 1-2 are matters of fact (and clearly were not in dispute in this case). Question 3 is a matter of law, and Question 4 is a matter of ethics and morals. The breakdown of jury decision into interrogatories is new to Brazilian law, introduced in a 2008 amendment. The judge shares the interrogatories with the parties and revises them if they express reservations he accepts.
After the attorneys were done, the judge emptied the room of audience (especially of the crime victims, because the vote is secret and there is concern about retaliation) and addressed the jury. He explained that he didn’t need their vote with regard to each victim, because the accident was the same. He also said that, since questions 1 and 2 were not in dispute, they were going to assume an affirmative answer to both, and start with question 3. He would ask question 4 only depending on the result of question 3. Each juror was handed a green ballot by the court employee, consisting of “sim” and “não” options. The judge asked question 3, again briefly explaining assumption of risk, and the jury voted. A court employee collected the ballots in a wooden box and closed the lid. The judge shook the lid and counted the votes. After 3 “sim” and 4 “não” responses, the deciding seventh vote was “não”, and the defendant was therefore declared not to have assumed the risk. The judge concluded that, in light of this decision, question 4 was not necessary. Daniela explained that, even though the interrogatory separates between the legal and ethical questions, juries frequently combine their answer in the legal vote.
With that, the jury’s part of the trial was over and I had to rush to the airport, but the judge and parties still had some work left to do. In the absence of a vote of intent, this was no longer a jury case, and the judge convicted the defendant of negligent homicide. The punishment was 4 years, but it was substituted by community work, and the defendant agreed to pay each of the living victims $250,00 dollars. The prosecutor walked away from the case feeling the decision was fair. Since the case presented a rather meaty legal question, as well as special personal considerations, no one was surprised that the vote came close. The jury faced a genuine dilemma and faithfully made an effort to follow the case and decide fairly.
“Is it crazy?” my friends, local academics and lawyers, asked me as they graciously gave me a lift to the airport. Crazy? I thought. Not really; that is, not necessarily less or more crazy than an American trial, or of any way which human beings orchestrate to pass judgment on their peers.
Many thanks to Daniela Moysés for inviting me to join her workday, to Judge Victor Pimenta for accepting me so kindly into his courtroom, and to everyone else involved in their trial for their graciousness.

Criminal Justice Bills Signed Into Law by Gov. Brown, 2013 Season

Image courtesy NBC San Diego.

A month ago we provided a brief overview of the criminal justice bills on Gov. Brown’s desk. With the end of the legislative session, we have some important updates on some of these bills. This is the first of two posts, reporting on bills signed into law; the second post reviews vetoed bills.

We’ve all heard the news about the passage of AB 4, otherwise known as the TRUST Act. Federal law authorizes federal immigration officers to advise state and local law enforcement agents that a given person under custody has to be held for deportation. Under the new bill, CA law enforcement officials are not allowed to detain someone based on an ICE hold after the person is eligible for release from custody, unless certain conditions apply, such as a conviction for specified crimes.

Regular readers may recall our failed attempt to restore voting rights to non-serious, non-sexual, non-violent offenders in jail or on community supervision. AB 149 requires each county probation department to maintain a link to the Secretary of State’s voting rights guide, explaining clearly people’s rights to vote, which is particularly important in the case of probationers, who are eligible to vote in California and may not know that.

And we all remember the happy announcement that AB 218, otherwise known as Ban the Box, passed and was signed into law. The bill prohibits state or local agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for the position. From the reentry perspective, it is a laudable initiative that gives formerly incarcerated people a fair shot at being considered for a position on their merits and qualifications. Fewer people are aware of SB 530, which prohibit employers from asking about convictions that have been judicially dismissed or ordered sealed, except in special circumstances.

There were a multitude of gun bills on the Governor’s desk, and the end result on those was fairly mixed. The higher-profile bills were vetoed, such as SB 374, which would have banned semi-automatic rifles with detachable magazines and require registration of even low-capacity rifles, and SB 567, which would have defined some rifles and shotguns as assault weapons. However, AB 231, which makes it a misdemeanor to store loaded weapons where children might have access to them, passed, and so did bills creating prohibitions for businesses from applying for assault weapons permits and two bills restricting firearms for mentally ill patients.

AB 494 increases CDCR’s accountability for literacy programs for inmates. Current law requires CDCR to implement literacy programs that would bring inmates, upon parole, to a 9thgrade reading level. ABA 494 requires CDCR to implement literacy programs that allow inmates who already have that level of literacy to acquire a GED certificate or its equivalent, as well as offer college programs through voluntary education programs. It also lists priorities. AB 624 is also a source of similar good news for inmate advocates. The bill allows sheriffs and other county directors of corrections to increase the number of programs that provide inmates with good credits toward release. Along the same lines, AB 1019 requires that the Superintendent of Education set goals for technical education programs in prison.

In helping folks reintegrate into their communities, record-cleaning and expungement issues are incredibly important. Now that AB 651 has been signed into law, defendants who did jail time for felonies may apply for expungement (withdraw their plea of guilty) after one or two years following the completion of the sentence, if they have an otherwise clean record; this makes their situation vis-a-vis expungements similar to that of defendants on probation. Defendants who completed prefiling diversion programs may also petition to seal the arrest records, under newly enacted SB 513. There are special rules about expungement of juvenile records, and AB 1006 creates an obligation to notify juvenile defendants of their rights to petition for sealing and destruction of the records.

There are other bills specifically geared toward juvenile defendants. SB 569 requires recording all interrogations of juveniles accused of murder (why only juveniles? why only murder? I suppose someone thought an incremental approach would be best.) And, of course, there’s SB 260, which, as we pointed out in the past, extends SB 9 to allow resentencing petitions for juveniles sentences to lengthy periods of time.

And more good news on the health care front: AB 720 requires the board of supervisors in each county to designate an entity to assist certain jail inmates to apply for a health insurance affordability program, and will prohibit county jail inmates who are currently enrolled in the Medi-Cal from being terminated from the program due to their detention, unless required by federal law or they become otherwise ineligible.

While SB 649, intended to reclassify simple drug possession as a “wobbler” (in order to allow it to be prosecuted as a misdemeanor) was vetoed (and more on that on the next post), there are some developments. AB 721 redefines drug transportation as transportation for sale purposes, effectively decriminalizing transportation for personal use.

There are also some expansions to police authority and some new criminal offenses, but at least from my perspective they seem fairly reasonable–a far cry from the super-punitive voter initiatives of elections past. SB 255 prohibits “revenge porn”, that is, distributing someone’s nude photo to cause them distress. [EDITED TO ADD: Notably, the law does not cover “sexting” situations, that is, redistribution of photos the victim took him/herself.] SB 717 allows issuing a search warrant to authorized a blood draw from a pesron in a “reasonable, medically approved manner, for DUI suspects who refuse to comply with police request for a blood draw. There’s also SB 57, which prohibits registered sex offenders from tampering with their GPS devices, which I suppose is good news for folks who think these devices are good tools for recidivism prevention (I have doubts.)

SB 458 tempers the legal requirements for including people’s name in gang databases. Under the new law, a person, or his/her parent/guardian in case of a minor, now gets notified that there’s an intention to include him/her in the gang member registry, and the person may contest, with written materials, said designation. Local law enforcement has to prove verification of the designation, with written materials, within 60 days.

And finally, SB 618 extends the ability to receive compensation for wrongful conviction to felons serving jail time. Also, the bill extends the time to apply for compensation to two years, requiring the Attorney General to respond within 60 days, and also removes the burden on the exoneree or pardoned person to prove that they did not intentionally contribute to bringing about the arrest or conviction.

Some important themes emerge. First, note the emphasis on reentry and reintegration in the job market, which is a healthy recession-era policy to allow formerly incarcerated folks at least a fighting chance finding employment and rebuilding their lives. We’re also seeing particular care with regard to juvenile offenders, especially those charged with or convicted of serious offenses. There isn’t a lot of hyperpunitive legislation, and the few new offenses seem tempered and reasonable. The next post deals with the vetoed bills.