Going to Canada--Clear Your Record First

Over the years Americans have grown used to free passes into Canada for vacations and short term stays. However, as a result of 9/11 and stronger border controls, Canadian border official are declaring many Americans inadmissible who least expect it. Members of Inadmissible Classes include those who have been convicted of MINOR OFFENSES (including shoplifting, theft, assault, dangerous driving, unauthorized possession of a firearm, possession of illegal substances, etc.), or of INDICTABLE CRIMINAL OFFENSES (including assault with a deadly weapon, manslaughter, etc.). As well, those who have been convicted of DRIVING WHILE INTOXICATED (DWI) are considered Members of an Inadmissible Class. Driving while under the influence of alcohol is regarded as an extremely serious offense in Canada.

Those who have received TRAFFIC VIOLATIONS (including parking/speeding tickets, etc.) and other minor violations (i.e. littering, etc.) most likely will NOT be prohibited from entering Canada. Similarly, those who have JUVENILE CONVICTIONS (convictions for crimes committed while under age 18) most likely will NOT be prohibited from entering Canada unless they could have been tried as an adult for their offenses.

If you plan a trip to Canada think six moths ahead and have a good lawyer, like me, obtain for you a TEMPORARY RESIDENT PERMIT, APPROVALS OF REHABILITATION, AND/OR PERMISSION TO RETURN TO CANADA, each of which requires extensive paperwork from the US.

The Future of DNA

We all know or have heard of innocent people being released from prison after DNA testing; according to the Innocence Project there have been 192 such cases since the question first arose. But how reliable is DNA and what is its future?

The answer to the first question is highly reliable BUT if and only if proper procedures are followed to avoid contamination. Recent cases have called into question DNA results where 3rd party DNA appeared on the evidence which could not be identified; these cases resulted in reversals because the DNA did not disclose this fact to the defense. Where does this 3rd party DNA come from? Who knows really but probably from someone who handled the petri dish containing the sample or someone at the factory who assembled the kit in the first place.

But this does seem to cast some doubt on DNA evidence. Is it enough to be reasonable? Probably not. One can imagine a future in which the role of defense counsel is reduced as criminal trials become a battle of scientific experts. Within the next 20 years I predict there will be a national DNA data bank. Why then bother with a trial at all: DNA match and summary punishment. Orwell could not have imagined worse.

Unreliability of Any Line Up???

From this week's Economist:

THE difference between fuzzy perceptions and hard science can mean everything to someone who has been falsely accused of a crime.
According to the Innocence Project, a non-profit legal clinic attached to Yeshiva University in New York, DNA evidence has so far helped to exonerate 194 people in the United States who were wrongly convicted, and who spent an average of 12 years in prison before being released.
Of the wrongly accused, over 75% had been mistakenly identified by eyewitnesses.

Since using witnesses to weed out suspects remains a crucial tool for investigating crimes, groups across the country--from crime commissions to state legislators--have been looking for better ways to run police line-ups. That effort is spotlighting an academic debate about psychology and research methods. And it has now triggered a lawsuit over a pilot study of three police departments in Illinois.

In traditional police line-ups (as featured in many a celluloid crime
drama) investigators show eyewitnesses a group of subjects or a palette of photos and ask whether the criminal they saw is among them. Many psychologists and criminal defence lawyers have called for a switch to another method that is different in two important ways. First, they say, the officers handling the line-up should not know which members of the group are "fillers": ie, innocents who have been added merely to make the eyewitness choose. That way, the witness does not pick up any cues, intentional or otherwise, about which subject the police suspect.

Second, say psychologists, eyewitnesses would respond more accurately if they could see subjects one at a time, rather than seeing a whole group at once and making relative comparisons. A number of research studies in academic settings have suggested that this method, called "sequential double blind", would lead to fewer witness errors than traditional line-ups. New Jersey's attorney-general recommended the new method to the state's police department in 2001. Since then, attorneys-general or crime commissions in Wisconsin, North Carolina and Virginia have endorsed the reforms in different ways; and legislatures in five other states are considering them.

This reform drive was called into question last year, however, by a pilot study in Illinois. Unlike earlier research, which often used video clips or other methods to simulate crimes and witnesses, the Illinois study was the first and only one to compare the two methods in the field using actual cases. During 700 or so real police investigations in Chicago, Evanston and Joliet, eyewitnesses using sequential line-ups were less likely to name the police's suspect, or anyone at all, as the criminal.

That is an ambiguous result, since the police, of course, could have been wrong about some of their suspects. But eyewitnesses using sequential line-ups named fillers as criminals--that is, they wrongly accused people who were definitely innocent--three times more often than witnesses who looked at traditional line-ups.

Many reforms remain convinced that the newer method is better, but concede that the Illinois study has slowed their political momentum. So earlier this month two reforming groups--the National Association of Criminal Defence Lawyers (NACDL), and the MacArthur Justice Centre at Northwestern University--filed a legal demand for more details about the pilot study. Scott Ehlers, who deals with state legislatures for the NACDL, says that some of its results are "fishy". The Chicago police, however, say that they are innocent. No eyewitnesses have come forward.


See this article with graphics and related items at http://www.economist.com/world/na/displaystory.cfm?story_id=E1_RSDSQPD

Justice or the Law

Not the same concepts are they? We all know of unfair laws or laws that are fair but not applied fairly. In the 19th century the Fugitive Slave Laws required that escaped slaves be returned to their masters. Is this just? Not unless slavery is just. Many were arrested during the civil rights movement for breaking laws in order to protest the existence of segragation. Is it just that these people should be imprisoned for what they did? Only if you believe segragation of the races is just.

There are times when our own notions of justice and the law conflict. If we are asked to sit as jurors in a case involving such a situation what is our duty: to follow the law or to do justice? When a lawyer appeals to the jury to do justice when that means refusing to apply an unjust law that is called jury nullification. But although in a criminal case the jury has the power to do what it considers right, the judge will tell you that jurors do not have the right to do so. In fact many judges will accuse lawyers of violating the standards of professional conduct if they seek jury nullification. The rule from the judge's perspective is easy: the judge explains the law to the jury and the jury then applies the law as explained to the facts of the case.

Today many believe that the terminally ill have a right to die, although in most states to assist them in doing so is to commit murder. Is it just that people who pull the plug on hopelessly ill relatives be tried for murder? I believe most of us would at least say it is a personal choice which is beyond the law. Is it just to punish those who supply the ill with marijuana to alleviate their pain? Most would say no but the law in most states prohibits the distribution of marijuana and such a person would be subject to prosecution for doing so.

Does a soldier have a right to refuse orders in a war he considers unjust, or to refuse an unjust order in a lawful war? In the Vietnam era many refused orders on this basis and a few were prosecuted. What then is the role of the judge or the Court? To follow the law or to do justice? In today's Iraq war, a few are beginning to question the war's legality; do they have a right to refuse to go there if ordered?

The law simply doesn't have all the answers or, to put it another way, the law has all the answers up to a point where human conduct takes us into uncharted waters. I have a case like this coming up for trial; I know the judge will lose it if he thinks I am going for jury nullification. I know it is not just that my client be convicted for behavior, that while illegal, did not cause the kind of harm the law is meant to prevent. If I do my job, as the law intends it, I must follow the law in defending my client. If I seek a just result I'm going to have a bumpy ride at the trial. A dilemma, huh?

Inmate Transfers Out of State?

Just when I was beginning to like Arnie again, I see news that he has signed an order transferring 5,000 inmates to other state prison systems. Likely transfer states are Mississippi, Arizona and Oklahoma, where private prisons flourish. While it is doubtless true that California's prisons are horribly overcrowded, shipping prisoners to private prisons far from their homes and loved ones hardly seems a humane solution. Prisoners can appeal the transfers, although the grounds are not clear.

I guess at heart Arnie will always be the Terminator, ruthless, cold, inhuman.