SciBlogs

Archive December 2009

Legal blunders, Xmas style Anna Sandiford Dec 20

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Ahh, so it’s Christmas and we can start to relax.  Instead of being all serious, here are a few little stories about things that went wrong around the world in the legal arena this year (these are from Week on the Web on which are all the original links to the international sources):

  • A mistake by a bailiff in a Houston, USA, courtroom led to a murder trial being declared a mistrial. It was only after all the testimony had been heard, the jury had deliberated and the verdict was being given that the judge noticed there was one jury member too many.
  • A man in the public gallery of an Australian courtroom was lucky not to be charged with contempt after his mobile phone went off in court. The problem was exacerbated by his ringtone – the sounds of a woman in the throes of pleasure echoed around the silent courtroom until he finally managed to turn his phone off.
  • A 25-year-old man from Oregon, USA, wandered off from jury service after only half a day in court. The judge issued an arrest warrant for the missing juror on charges of contempt. When the police finally caught up with him, the juror said he had been “extremely bored.”
  • I hope no-one gets any ideas from this one…… A 38-year-old man who was on trial for burglary in San Diego, USA, took drastic steps to ensure his request for a mistrial was granted. After his initial request was rejected by the judge, the Defendant brought a bag of his own faeces to the courtroom, which he proceeded to rub on his defence attorney and throw at the jury. The judge declared a mistrial and the Defendant was assigned a new lawyer.
  • I can think of many times when this would have been a good idea….. A judge in Ohio, USA, frustrated with constant interruptions from a defendant, warned him that if the disruption continued, he would have his mouth taped up. The defendant didn’t take the judge’s warning too seriously, and after yet another interruption the bailiff taped up his mouth with duct tape.
  • It was never this interesting when I went to the Central Criminal Court….. A trial at the Old Bailey, London, England, had to be temporarily suspended after a female juror became inadvertently distracted. Sitting opposite the juror in the raised public gallery was a transsexual who had dressed in a skirt, but forgotten that women generally wear underwear and cross their legs when seated…..
  • An American man, desperate to avoid jury duty, tried to make himself as undesirable as possible for jury selection. In his pre-selection questionnaire and interview, the gentleman declared himself to be racist, homophobic and a liar. Unfortunately, the judge saw through his tactics and he found himself facing possible perjury charges.
  • Can you imagine this?!?!    A judge in Colorado, USA, has come up with an unusual punishment for people who break noise pollution laws by playing loud music. The guilty party, who is usually a young adult, has to sit for one hour and listen to music such as Dolly Parton and Karen Carpenter being played loudly in the courtroom.
  • Defendants must give some thought to what they wear before appearing before Florida judge Daniel Perry. The judge has a very strong objection to men wearing loose and saggy trousers, and any defendants who enter his court room ‘with their rear ends hanging out their pants’ are immediately sent back to jail to find more suitable clothing.

Amazon recommends….cholera Anna Sandiford Dec 16

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Amazon.co.uk regularly sends me emails about books it recommends – and I realise that I’m not alone in that respect.  Today’s recommendation made me realise that maybe I need to change my job or diversify my reading tastes because today, Amazon recommended “Cholera: The Biography”, with 40% off.

I don’t know what to say.  Perhaps “Congratulations” to the author, Christopher Hamlin, because it’s a big thing to get a book deal  (I just got one, with Harper Collins – woohoo!!).

Tattoos, infra-red and criminals Anna Sandiford Dec 15

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An infra-red photographic technique is being developed in the UK to help Police determine whether a suspect has had a tattoo altered or removed: Change your tattoo at your peril if you have criminal intent.  Tattoos are, of course, nice and distinct and are often used to identify people – there aren’t the usual cross-racial identification problems or other problems associated with witness trauma because tattoos are so often compelling to the eye.  Preliminary investigations suggest that infra red examination of the skin can show up what has happened to the otherwise non-visible dermis, such as tattooing, surgery or laser treatment.  Using IR cameras to take photos of suspects will of course speed up the entire process, which is always good when the Police are investigating crimes, usually against the clock.

If it works it could be very useful but I have to ask, if a criminal is sharp enough to know that their tattoos could be used to identify them, you’d think they’d go to appropriate lengths to ensure they’re covered up during the commission of a crime.  Still, I guess there will always be the occasion when someone sees themselves on Crimestoppers or Police 10-7.

Glass evidence kits for pubs! Anna Sandiford Dec 12

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It seems that Police in England have developed a “crime scene kit” to give to bar and pub owners for the collection of glass after drunken brawls. Glassings or bottlings (when a glass or bottle is smashed before being thrust into the victim, often in the face) are a common occurrence in British society, usually after 10 pints of lager and shortly before a kebab on a Saturday night.
The biggest problem with cases of this type is that the witnesses are often pissed and can’t clearly remember what happened, the CCTV footage isn’t too clear and the glass used in the event gets crushed and then swept up because, obviously, it’s dangerous. In cases where broken glass is successfully recovered, the forensic results can be very good – fingerprints can demonstrate the manner in which a bottle was being held, DNA from blood can show whose body said weapon was used against but, as I just indicated, this type of information is often lost in the aftermath.
Police in Plymouth, Devon, have decided to try to combat this problem of lost evidence by handing out clean dustpan and brush kits to local pub and bar owners so that they can collect the evidence for later examination (City bars given ‘crime busting’ dustpan and brush).
To me, this could go one way or the other. On the one hand, it’s good because the collection of this sort of information could potentially increase the number of successful convictions in what is an horrendous and often life-altering event for the victim. On the other hand, there is no chain of custody with law enforcement personnel. A bar manager could choose to ‘fit someone up’ because, let’s face it, the chances are that that they know the troublemakers. I think only time will tell with this one but I’d be interested to be involved with cases of this type as an independent expert, just to see how the prosecution laboratories and the Police handle the evidence collection side of things.

DNA – conviction and freedom Anna Sandiford Dec 12

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The debate about DNA rages on with Victoria, Australia, temporarily halting the use of DNA in criminal cases because of a problem with interpretation of results after new technology was brought online in September. As a result of the new technology more detailed information was obtained from DNA samples but the statistical models used to interpret the data are now inadequate (Police put ban on DNA evidence). Victoria’s Police Forensics Lab is having a rough time of it lately, with staff refusing to attend court and then being threatened with legal action, a rape case falling over because DNA evidence was contaminated and other issues having a deleterious effect on how the laboratory is running.

Happily, DNA evidence in England now seems to be fairing much better after the suspension of Low Copy Number DNA evidence in 2008 following the spectacular collapse of a major trial against a man charged with one of Northern Ireland’s worse bombings – the Omagh bomb in 1998 (DNA test halted after Omagh case). A man was recently cleared of rape (after he’d been sentenced in 2002 to six years’ imprisonment) as the result of DNA evidence that showed he had not penetrated the victim but that there was evidence of the DNA of three other males on the swabs from the Complainant (Man given six years for rape cleared by new DNA evidence) and another man was convicted after a random “hit” on the DNA database. To me it shows that DNA is one of those areas of forensic science where you can never take your eye off the ball.

Dog sniff line-ups: junk science Anna Sandiford Dec 12

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Texas has had its fair share of forensic science grief these last few months.  Mostly notably, a big argument has erupted over the execution of an apparently innocent man (many articles on the subject, including this one, about Cameron Todd Willingham who was wrongly convicted on the basis of forensic evidence later shown to be incorrect).

The State is now in hot water over its continued and questionable use of dogs to identify perpetrators using a dog scent line up.  Basically, a swab is rubbed over an item of interest, such as a rope used to strangle a murder victim.  The swab is placed in a tin.  Several other tins are lined up, each with a swab from a different person (including one from the the suspect).  Dog is allowed to sniff crime scene swab then sniffs the swabs taken from people.  Dog “matches” crime scene scent with suspect’s scent – suspect arrested and charged with heinous crime.

The Innocence Project has now got involved because, I believe quite rightly, this is not a scientific method that can be shown to be reliable or reproducible. To my knowledge, there is not a body of well-researched, peer-reviewed scientific literature backing up this method of ID.

Let’s hope this method doesn’t take off over here – at least not until the scientific sector is convinced it has been exhaustively examined, considered, tested and that the courts accept it BEFORE someone is charged with a serious offence. In my opinion, a case should not stand on one evidence type alone – something a bit more than a dog sniff and a police report should be required.

UK Legal Aid Report – lessons for NZ? Anna Sandiford Dec 07

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I’m not going to get into the whole debate about the NZ Legal Aid Reform report largely because, so far, it hasn’t mentioned Expert Witnesses.  However, a recent English review of their Legal Aid system seems to show very different criticisms than have recently been levelled at the NZ system and its practitioners (NZ report is at Transforming the Legal Aid System).  The key part of the NZ report that criticises how the system is apparently working says:

“The ties that once held lawyers together as a profession seem to be breaking down, and some lawyers appear to be operating as a business without the professional standards and support that used to exist. The legal aid system appears to have had a role in this, through the pay rates and administrative burdens that have led to many law firms exiting the system, and being replaced by barristers sole, “car boot lawyers” in particular.
There are many conscientious and experienced barristers and solicitors working in the legal aid system, who are a credit to their profession. There is also a small but significant proportion of lawyers providing very poor services. Behaviour I have heard about includes callous and arrogant indifference to clients’ needs, and an absolute disregard and disrespect for the court system, its processes, and its participants. Some lawyers appear to be acting corruptly, and should be disbarred.
The poor practices identified in the review include:

  • lawyers making sentencing submissions without having read the pre-sentence report
  • practising lawyers being unaware of legal principles and being unaware of their ignorance
  • lawyers repeatedly failing to turn up to court
  • “car boot lawyers” using a District Court law library phone number as their office number, and appropriating interview rooms in the court as their offices
  • lawyers gaming the system by delaying a plea or changing pleas part-way through the process in order to maximise legal aid payments (I have been told by people who work in the court that up to 80 per cent of lawyers practising in the Manukau District Court could be gaming the system)
  • lawyers who demand or accept “top up” payments from clients who do not understand that the Legal Services Agency pays all of the bill
  • widespread abuse of the preferred lawyer policy by duty solicitors, including by taking backhanders for recommending particular lawyers to legal aid applicants.

These problems are more serious and more entrenched in the criminal bar than in other law types.”

The UK report: National Audit Office report shows lawyers are ready to walk as failing legal aid system crumbles says that: “16 per cent of solicitors firms providing legal aid criminal defence services make 0 per cent profit and 14 per cent of firms make only 1-5 per cent profit. The figures represent the position before the partners receive a single penny – 0 per cent profit means that the partners did not earn any income whatsoever for their work. In effect, they are being cross-subsidised by more profitable work that the firm does. Most worryingly, says the [Law] Society, 28% of firms said they were unlikely to be conducting legal aid in five years time because of unprofitability, the prospect of tendering or retirement.“

Different criticisms and problems, very similar legal systems.  How is it all going to be fixed?

DNA database – how long to keep samples from innocent people? Anna Sandiford Dec 07

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Just to throw some petrol on the fire of debate about how long to keep DNA samples on the DNA database if someone hasn’t been charged with a crime, here is an article from the BBC that shows cold case reviews and random hits on the DNA database do occur: Rape conviction ‘backs DNA case’. The Defendant, and now convicted rapist, was arrested in 2001 following an assault for which he was never charged. His DNA profile was uploaded to the UK National DNA Database in 2007 (because of advances in technology) where it scored a hit against an unsolved, outstanding rape case from 1990.

Some will say this is an excellent example of why DNA samples should be retained – what price does society put on solving a rape? On the other hand, some will say that the small number of successful random hits like this are far outweighed by the number of people who consider their civil liberties and human rights are violated by having their DNA retained on a database when they haven’t been proved to have do anything criminal.

Scientists and our opinions Anna Sandiford Dec 07

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This post follows on from a recent post by Grant Jacobs (Scientists on TV: referees of evidence or expert’s opinion?) and associated comments.

In my opinion, if an expert is presenting information to a court, the court setting doesn’t matter, the manner in which the scientific findings are presented should be the same, regardless of the forensic setting – reproducibility, reliability, impartiality, duty to the court not to those instructing, not having an opinion on the Ultimate Issue (guilt, innocence or other final outcome to be decided by the Trier of Fact and no-one else). The things that distinguish how findings are presented are the rules that relate to individual courts. As a guide, the High Court Code of Conduct for Expert Witnesses is the minimum I would expect of any consultant I used, regardless of the court – these Rules relate to the NZ High Court. (I have previously written about the differences between scientific findings and evidence).

The UK has the most advanced set of procedures that I have encountered to-date – and, having worked with them for some years, I believe they are excellent. Civil procedures are covered by Criminal Procedure Rules (CPR) Part 35 and Part 35 Practice Direction. Criminal procedures are covered by the Criminal Procedure Rules (CrPR) Part 33. These detail how to write reports, how the court should treat Experts, how the court system should work and what the Expert can expect, to name but a few. It seems very regimented but it is designed to create and maintain consistency in standards.

Once the scientist/expert is familiar with the CPR Part 35 and CrPR Part 33, it makes life much, much easier. It allows the courts to believe the findings more easily because before the findings can even make it into court they’ve been through a rigorous checking procedure, as has the Expert.  Having experience giving evidence helps as well of course – the more experience, the better (although that doesn’t meant it’ll get easier with time – it doesn’t).

So, in conclusion, if a scientist can learn to use these tools of procedure for casework and preparation of reports, maintaining control of an interview should seem much easier!  Although, lest we forget, there are no rules for interviews….

Pepper spray and cocaine – a lethal mix? Anna Sandiford Dec 06

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Recent research in mice has shown that an interaction between cocaine and the active ingredient of CS spray, capsaicin, may result in death.  CS spray (more commonly known as pepper spray) is used by police forces the world over, including New Zealand, as a non-lethal weapon to assist with arrest and incapacitate the person being sprayed.
I’ve encountered the use of CS spray in several cases, all of them alcohol-related but none of them involving fatalities.  Apparently, the presence of capsaicin makes smaller amounts of cocaine more lethal, reports New Scientist (Cocaine and pepper spray – a lethal mix?). It must be remembered however that the research involved mice who were injected with cocaine and capsaicin, whereas in humans the capsaicin is sprayed into the face at a variable time after the cocaine had been taken.

As is often the case with studies involving animals, the results do not necessarily translate directly to humans. However, should there be found to be any definitive correlation between human deaths and the use of CS spray after someone has taken cocaine, the long-term future of the use of CS spray by Police does not look rosy. The New Scientist article also indicates that review was undertaken of 26 deaths that occurred between 1993 and 1995 of people who died shortly after being subdued with pepper spray. 19 had evidence of psychostimulant drugs in the blood and nine had cocaine. Toxicologists are, of course, interested in the results, which may be the result of interactions between the drug and capsaicin in the brain but, as with all good research, further information is needed particularly if there is a push to have the spray banned as a non-lethal, law enforcement weapon. I also assume that someone in the States would want to sue someone else if research proves a link between deaths, cocaine use and CS spray used by a Police officer.

Despite suggestions that, just in case there is an adverse interaction, CS spray not be used on people who have taken cocaine, it begs the question that what Police officer is going to stop and ask a struggling, defensive, aggressive member of the public whether or not they’ve taken cocaine? Practicality says the opportunity for such questions doesn’t always exist – and even if it did, anyone with any sense is not going to admit to a member of the law enforcement agency that they’ve taken an illegal drug, even if the question is supposed to be for their own good.

Let’s wait and see the outcome because someone somewhere has got funding to research this. If the results are against the continued use of CS spray, I guess each country will then need to undertake its own review before making a decision.

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