Vol. 13, Nos. 30 & 31
Covering Cases Published in the Advance Sheets through July 31, 2006

Playing Games With People's Lives - And Getting Away With It

More on the "Mind-Numbing Incoherence" of the Booker Rulings

More Challenges to the Reliability of Eyewitness Identification Testimony

The Presumption of Guilt in Drug Forfeiture Cases

 

The Great (Unobtainable) Writ - Circa 2006


Qassim v. Bush, No. 05-5477 (D.C. Cir. Aug. 14, 2006) (Per Curiam) (Unpublished)

Back in 2001, in an effort to show the American people that its Government was being aggressive in the newly-announced War on terrorism, the Government began offering bounties of $5,000 or more for detainees captured in Afghanistan. (See, “Close Guantanamo Now”, a Boston-Globe Editorial, February 10, 2006.) Such bounties, of course, were a King’s ransom to the tribal warlords in Afghanistan and the rag-tag collection of Pakistani soldiers pretending to operate as America’s allies; and, of course, those bounties immediately produced the results that the Administration needed for its public relations campaign.

A group of Muslim Uighurs, natives of China’s western semi-autonomous Xinjiang province, were seized and turned over to U.S. forces; and, in June 2002, they were transferred to the U.S. Naval prison at Guantanamo Bay, where they were labeled as “enemy combatants” and held incommunicado and without any formal charges being filed against them.

Over time, various groups became aware of their plight; and suits were filed to obtain their release. (See, e.g., Qassim v. Bush, 382 F.Supp.2d 126 (D.D.C. Aug. 19, 2005) and 407 F.Supp.2d 198 (D.D.C. Dec. 22, 2005)). A key facet of the Uighurs’ legal arguments was that a special Combatant Status Review Tribunal (CSRT) had subsequently determined that those detainees “should no longer be classified as enemy combatants. Ultimately, Judge Robertson essentially ruled that the continued, indefinite detention at Guantanamo Bay of the two Uighurs in the case before him was unlawful, but he also concluded that he had no authority "to do what I believe justice requires" in ordering their release.

Even though that ruling was quickly appealed to the D.C. Circuit, defense counsel also sought immediate relief for the lengthy - and now clearly unjustified - detention of the Uighurs at Guantanamo Bay; but, in April, 2006, the Supreme Court declined to grant a writ of certiorari before the D.C. Circuit entered a judgment in the case. (See, “Guantanamo Detainees Fail in Bid For High Court Review,” The Wall Street Journal, April 17, 2006).

The battle then returned to the D.C. Circuit court, where oral arguments were scheduled to be heard on Monday, May 8, 2006. In a transparent attempt to avoid any judicial review of its autonomous decisions regarding those it labeled as “enemy combatants,” on Friday, May 5, 2006, the Administration quickly spirited at least five of the Uighurs being held in captivity at Guantanamo to that wonderful freedom loving nation of Albania - a country that had no known connections with any of the Uighurs, but one which the New York Times described as “a poor Balkan nation eager to please Washington.” (See, “Freed From Guantanamo but Stranded Far From Home,” by Neil A. Lewis, The New York Times, Aug. 15, 2006).

The Government then filed an “emergency motion,” requesting the D.C. Circuit to dismiss the pending appeal as moot, now that the Uighurs were no longer held at Guantanamo Bay. The Uighurs opposed that motion, arguing not only that their detention was unlawful after the military concluded that they were not “enemy combatants,” but also that the Government had a policy of transferring captives from Guantanamo “to avoid judicial scrutiny.”

The D.C. Circuit finally ruled on the Government’s motion, in this unpublished ruling that wasn’t even made publicly available on its Website for several days. Effectively, the Court found that the Uighurs’ claims did not survive their move to Albania: there was no longer any active legal controversy over their detention.

So, once again, the Administration gets away with its asserted power to detain anyone it labels an “enemy combatant” (even when the military says they are not); and no court seems to have the balls to challenge the Administration’s policy of playing havoc with these people’s lives by moving them from one desperate place to another in order to avoid judicial review - or, worse, having to admit that a mistake was made.


U.S. v. Cull, No. 05-CR-329 (E.D.Wisc. Aug. 30, 2006) (Judge Adelman)

The defendant in this case pled guilty to conspiracy to distribute marijuana. His sentencing range under the so-called “advisory” Guidelines was 10 to 16 months in prison. In this concise but cogent sentencing memorandum, Judge Adelman explained his reasons for imposing a sentence of two months incarceration. At the end of his decision, Judge Adelman made the following perceptive and self-explanatory comments:

“There have been suggestions in some recent appellate decisions that a district court may not vary from the guidelines unless it finds some factor unusual or unique to the defendant warranting the variance. It is difficult to see the basis for such a rule – which sounds very much like the old departure standard – in Booker or § 3553(a). Moreover, such a rule improperly elevates the guidelines above the other factors set forth in § 3553(a). In essence, it makes the guidelines the objective measure of the sentence, and disallows any other sentence unless the court is able to explain why the guideline sentence is wrong. The district courts’ limited departure authority did not save the guidelines in Booker, see 543 U.S. at 234-35, and if appellate restriction of sentencing discretion continues such that the new system begins to resemble the old, another disruption may be in the offing.” (Internal citations omitted.)


U.S. v. Rodriguez-Felix, 450 F.3d 1117 (10th Cir. June 2, 2006) (Judge Tymkovich)
U.S. v. Brownlee, 454 F.3d 131 (3rd Cir. July 18, 2006) (Judge Ambro)

Both of these cases add a great deal of insight, and lots of valuable resources, to the question of when and under what circumstances a defendant is allowed to present expert testimony at trial regarding the accuracy and reliability of eyewitness identification testimony against him. To put that issue in context, Judge Ambro, writing for the Brownlee court, made the following observations:

“It is widely accepted by courts, psychologists and commentators that ‘[t]he identification of strangers is proverbially untrustworthy.’ Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen 30 (Universal Library ed., Grosset & Dunlap 1962) (1927) . . . ; see also U.S. v. Wade, 388 U.S. 218, 228 (1967) (stating that "[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification"); C. Ronald Huff et al., Guilty Until Proven Innocent: Wrongful Conviction and Public Policy, 32 Crime & Delinq. 518, 524 (1986) (‘the single most important factor leading to wrongful conviction in the United States . . . is eyewitness misidentification’). . . . In fact, ‘mistaken eyewitness identifications are responsible for more wrongful convictions than all other causes combined.’ A. Daniel Yarmey, Expert Testimony: Does Eyewitness Memory Research Have Probative Value for the Courts?, 42 Canadian Psychology 92, 93 (May 2001). ‘[E]yewitness evidence presented from well-meaning and confident citizens is highly persuasive but, at the same time, is among the least reliable forms of evidence." Id. (Emphasis added.)

“Even more problematic, ‘jurors seldom enter a courtroom with the knowledge that eyewitness identifications are unreliable.’ Rudolph Koch, Note, Process v. Outcome: The Proper Role of Corroborative Evidence in Due Process Analysis of Eyewitness Identification Testimony, 88 Cornell L. Rev. 1097, 1099 n.7 (2003). Thus, while science has firmly established the ‘inherent unreliability of human perception and memory,’ this reality is outside ‘the jury's common knowledge,’ and often contradicts jurors' ‘commonsense’ understandings. To a jury, ‘there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says[,] “That's the one!'" Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting) (emphasis in original).” (Brownlee, id., at 141-142) (Some internal citations omitted).

The Rodriguez-Felix case is a textbook example of how not to convince an appellate court that the trial court committed reversible error in refusing to allow expert testimony on the accuracy and reliability of the eyewitness identification testimony that was presented at trial. In this case, the defendant was convicted of distributing crack cocaine, largely on the basis of extensive trial testimony from multiple eyewitnesses. At trial, Rodriguez attempted to present expert testimony from Dr. Steven E. Clark, a university professor with expertise in the “memory and decision processes which underlie eyewitness identification decisions.” (Id., at 1122.) The district court refused to allow such testimony, concluding that, under the facts of this case, the proposed testimony met neither the reliability component nor the relevancy component of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

On appeal, the Tenth Circuit acknowledged that “modern research . . . recognizes that an eyewitness’s identification may be subject to significant witness error or manipulation” (id., at 1123); and that the vast majority of Federal Circuits have rejected any per se exclusion of expert testimony on the accuracy and reliability of eyewitness identification testimony. (Id., at 1124). Nevertheless, on the facts of this case, the Court agreed that Rodriguez had failed to show why Dr. Clark’s testimony should have been admitted. It stated in part:

“On a fundamental level, Dr. Clark's report is unclear as to whether his testimony would rely on his own research or that of other psychologists. In either case, the report was insufficient to allow the district court to ‘assess the reasoning and methodology underlying the expert's opinion. . . ." The description of Dr. Clark's research is wholly inadequate--it fails to indicate whether it has been subjected to peer review, whether it has been published, and whether it has been accepted by other psychologists in the field. Indeed, Dr. Clark states that he is currently in the process of testing his theory.” (Rodriguez-Felix, id., at 1125-26).

The Court also noted that Rodriguez did not allege that the district court had failed to employ the proper legal framework required by Daubert; but only that the district court had abused its discretion in actually applying the Daubert framework to the testimony presented. Under that standard, the Court concluded that, even if it agreed that the district court had abused its discretion, any such error would have been harmless.

In Brownlee, the defendant was convicted of carjacking in violation of 18 U.S.C. § 2119, and various related firearms’ offenses. After the car was stolen, the thief sped away from the scene of the crime, crashed the car into a utility pole, and then fled on foot. There was no direct evidence tying Brownlee to the carjacking. (Brownlee, id., at 136.) Neither the stolen car nor its contents were ever tested for fingerprints; and the car was ultimately destroyed. However, the police issued an alert that described the suspect as “a black male with a dark blue shirt and a ball cap.” On the basis of that description, Brownlee was subsequently picked up by the police and taken to the scene of accident. While in handcuffs and surrounded by the police, four witnesses identified Brownlee as the carjacker. At trial, the Government’s principal evidence against Brownlee was the testimony of those four witnesses.

Brownlee presented a mistaken identity defense at trial; and he attempted to present the expert testimony of Dr. Jonathan Wolf Schooler, “an expert in the field of human perception and memory” (id.), on broad range of topics, including “the inherent unreliability of human perception and memory.” (Id., at 142). While the district court allowed Dr. Schooler to testify on a number of requested topics, it declined to let him testify on the general accuracy and reliability of the eyewitness testimony.

The Third Circuit found that the limitations imposed on Dr. Schooler’s testimony were erroneous and warranted remanding the case for a new trial. Based in large part on the Court’s views (quoted above) about the “inherent unreliability of human perception and memory,” the Court explained:

“Due to the nature of the Government's evidence and Brownlee's defense (mistaken identity), the primary issue before the jury was the reliability of the Government's four eyewitnesses. '[I]t would seem anomalous to hold that the probative value of expert opinion offered to show the unreliability of eyewitness testimony so wastes time or confuses the issue that it cannot be considered even when the putative effect is to vitiate the [primary] evidence offered by the government.' In light of these considerations, we hold it was wrong to exclude expert testimony regarding the reliability of the very eyewitness identification evidence on which Brownlee was convicted, and remand the case for a new trial." (Id., at 114) (Internal citations omitted).

For more on this topic, see “Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony,” by Dr. Henry F. Fradella, Professor of Criminology at The College of New Jersey, as published in the Federal Courts Law Review, June, 2006. In that article, Dr. Fradella reviewed much of the scientific literature pertaining to perception and memory and analyzed some of the complex factors that bear on a human being's ability to remember what occurred during the commission of a crime and to then identify its perpetrator. He then concluded that those factors are beyond the common knowledge of jurors and that educating them as to their significance is crucial to the jurors' realistic assessment of the accuracy of the eyewitness testimony they have heard. He therefore urged the courts to abandon their refusal to admit expert witness testimony as to the scientific factors pertaining to the validity and accuracy of eyewitness identification and permit jurors to hear this vitally important information.

See also, "Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures," by Timothy O'Toole and Giovanna E. Shay, Valpariso University Law Review, No. 1, 2006.


In Brief

Crime Victims’ Rights Act - Exclusion of Victim/Witnesses Not Required at Trial: In Re Mikhel, 453 F.3d 1127 (9th Cir. July 7, 2006) - Here the Court held that the Crime Victims’ Rights Act, 18 U.S.C. § 2771 (CVRA), did not permit the district court to exclude victim-witnesses from the courtroom during a murder trial unless clear and convincing evidence proved that their testimony would be materially altered if they were allowed to attend the trial in its entirety. Now how, before any of the evidence is even presented at trial, can anyone prove by clear and convincing evidence that a witness will alter his or her testimony if allowed to attend the full trial?????

Inmate Legal Mail: Jones v. Brown, No. 03-3823 (3rd Cir. Aug. 24, 2006) - In this case the Third Circuit held that inchoate concerns by prison officials about the risk of biological contamination in mail addressed to inmates was not sufficient to overcome the inmates’ constitutional right to unimpeded communications with their lawyers. The Court concluded that, notwithstanding the state’s argument that the anthrax scare in 2001 had created an emergency sufficient to override the long-standing policy of having legal mail opened only in the presence of the addressee-inmate, there was no reason to continue the policy indefinitely. Accordingly, New Jersey corrections officials were enjoined from inspecting inmates’ mail outside of their presence.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
110
1,623
25,461
District Courts
52
841
14,283

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