Your Friday Funnies, courtesy of Senate Judicial Hearings

You'll know doubt hear, if you haven't already, about the confirmation hearing for federal judicial nominees today that included some stark revelations for one. 

Sen. John Kennedy, a Republican from Louisiana, began his portion of the questioning by asking the group if any had ever tried a case to verdict. One nominee, Federal Election Commissioner Matthew Spencer Petersen, was the lone person to indicate that he hadn't. 

Sheldon White/Twitter

At this point, Sen. Kennedy directed essentially the remainder of his questioning at Petersen and his qualifications, or lack thereof, to be the next U.S. District Court judge for the District of Columbia. 

You can watch the 5-minute video clip here. And it id definitely worth the view. 

Let me be clear, I can't speak for Petersen's qualifications in his present job, and I'm sure he is a fine lawyer. He is, however, not a trial attorney (by his own admission). That is a problem because he is nominated to become a trial court judge in a very busy court. 

When asked if he knew about a motion in limine (which, for our non-lawyers, is a very common motion filed and heard at the start of trials), Petersen fumbled through with his response and admitted his "background is not in litigation." 

As a trial court judge here in Fort Lauderdale once said, "When people begin their response to a question without giving the answer, I know they don't know the answer."

After being asked again about the motion in limine, Petersen responded "I would probably not be able to give you a good definition right here at the table." 

Other essential trial qualifications that Petersen lacked: Never tried a civil or criminal case; never tried a bench trial; he hasn't taken more than a couple depositions on his own, if that; he hasn't reviewed the Federal Rules of Civil Procedure or Rules of Evidence since at least law school; and he is not aware of the Daubert standard. All of these are essential for a trial attorney and trial judge.

The exchange between Sen. Kennedy and Petersen is brutal. Thankfully Sen. Kennedy revealed these issues. No one, regardless of their political persuasion, would want a judge hearing and presiding over a trial in their case who lacked such fundamental qualifications.  

George C. Palaidis is a criminal defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

"Just give me a lawyer dog cause this is not what's up"

A Louisiana Supreme Court ruling from last week is making the rounds on social media and news outlets over a request for a "lawyer dog." As can be expected, there is more to the story than meets the eye, and is somewhat convoluted. 

First, the shocking part of it. In a 6-1 decision in State of Louisiana v. Warren Demesme, the state supreme court denied a writ of certiorari (I'll explain that later) regarding the denial of the defendant's motion to suppress. The defendant, Warren Demesme, was interrogated twice by police regarding sexual misconduct with minors. During the second interrogation, after having been read his Miranda rights, he requested an attorney from police. At that point, the police should have stopped the interrogation and obtained an attorney for him. They didn't, he continued to talk, and those statements are at issue in the trial. Demesme's attorney filed a motion to suppress his statements (keep them out of the trial) because the police continued to interrogate him after he asked for a lawyer. That motion was denied by the trial court for reasons I have yet to discover. 

Now, the 'fun' part in understanding how this issue got to the state supreme court while the trial case was still pending. The legal procedures in Louisiana are different than those of most other states, including Florida. This post then is the result of a brief crash course I undertook and if I am wrong in any way, I will gladly accept any information from those 'in the know.' 

After the trial court denied the motion, Demesme's attorney filed an application for a 'supervisory writ' to the Court of Appeal for the Fourth District, asking for a review of the trial court's denial of the motion to suppress. This is a discretionary review, meaning the court of appeal is free to review it or not, and the court of appeal's denial is merely a decision not to exercise its jurisdiction at that time. The issue could still be brought up for review when the final judgment is on appeal. This type of 'supervisory writ' relief isn't available in Florida, and a defendant in a similar situation here would have to wait until and unless he was convicted at trial to appeal the trial court's ruling on the motion to suppress. 

The denial of the 'supervisory writ' was then appealed to the state supreme court based on an application for writ of certiorari. The defendant was asking the supreme court to review the denial of the supervisory writ, even though no opinion was given by the court of appeal for denying it. 

The state supreme court denied the application for the writ, without opinion, and the matter would have otherwise been left at that. The case against Demesme would then proceed to either a plea deal or trial and, if trial, the issue regarding the motion to suppress could again be appealed if he was convicted. 

But for some reason, Justice Scott Crichton wrote a concurring opinion stating he agreed with the denial and then gave his own reasons for denying the application for the writ.

It is his belief, he says, that "the defendant ambiguously referenced a lawyer— prefacing that statement with 'if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.'" 

The justice seriously wants people to believe that Demesme made an "ambiguous and equivocal" reference to a "lawyer dog." 

The general law on this issue is that if a criminal defendant makes an ambiguous or equivocal reference to an attorney and a 'reasonable' officer understood that the defendant might be invoking his right to an attorney, the interrogation doesn't need to stop. That wasn't the case with Demesme.

While it isn't clear where Justice Crichton obtained the transcribed quote from (perhaps a court reporter from the hearing transcribing the video or his own transcription of the video if he had access to it on appeal), it is a strained belief to say that anyone of a reasonable mind would think that a criminal defendant would be asking for a dog trained in the art of the law and licensed by the state bar association. One doesn't need a comma between 'lawyer' and 'dog,' nor have the word dog spelled 'dawg,' to know that Demesme was unequivocally requesting an attorney during the interrogation. 

What I believe Justice Crichton has done, though, is telegraph a message to the lower courts in this case and perhaps others that he will view statements like these very liberally in terms being ambiguous requests for an attorney. Based on the limited information in the concurring opinion, there is limited legal, precedential applicability on future cases. But Justice Crichton wrote more than was required, with an absurd result from flawed reasoning. With his opinion, the lower courts could now have tacit cover for denying motions to suppress based on this issue knowing that at least one justice has their back.   

While not fake news, everything you've likely heard about the case has been highly inaccurate. The state supreme court didn't deny an appeal based on the request for a 'lawyer dog' and there is no conviction that has been sustained. The case against Demesme will proceed and, worst case scenario, he'll have another crack at the denial of his motion to suppress. I'd love to hear, though, what the practitioners in Louisiana have to say about Justice Crichton's peculiar concurrence and what effect it might have in other cases and other trial courts. 

George Palaidis is a personal injury and criminal defense attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Your face has likely been in a virtual photo lineup

The face of nearly one in two American adults are in law enforcement face recognition networks. So whether you like it or not, and without your permission, chances are your face has been used in some kind of virtual photo lineup used in a criminal investigation.

                   

That's because those numbers are not only made up of mugshots taken of people arrested by law enforcement. That's especially true if you live in Florida.

A report was recently released by Georgetown University Law School following a year-long investigation that included over 100 public records requests to law enforcement agencies and police departments across the country. According to the report, the faces of over 117 million American adults are stored in law enforcement face recognition databases, and close to 64 million Americans have no say in the matter; Florida being one of the states.

What are we really talking about here, though, when we say face recognition? Many criminal defense attorneys, and even the public at large watching television crime dramas, will know about a photo lineup or even a physical lineup. Typically a police officer will compile six photographs for a lineup to show a witness, with one being a known suspect and the other five looking generally similar. Many times that is not the case, and I’ve successfully defended clients with highly suggestive and impermissible lineups where the lineup was all but singling out my client. Nevertheless, the witness will look at those six photos and pick out the one that he or she is confident committed the act.

As the report defines it, face recognition is “the automated process of comparing two images of faces to determine whether they represent the same individual.” Basically an algorithm is used to “find” a person’s face in a picture (characteristics and features that are numerically quantified), and then using the algorithm that “face” is compared with others in a database of other faces to find a set of matches. The results don't specifically identify a single match, but instead identify a list of candidates or top matches that are then provided to law enforcement. 

The report focused on face identification (as opposed to verification), which seeks to identify an unknown face. Law enforcement, for example, could stop an individual and snap a photo using their cellphone or tablet and run the photo on their squad car computer to determine a match. Other examples include identifying individuals after arrest (with other cases); identifying suspects during investigations with images from security cameras or smartphones or social media; and real-time video surveillance where an image of an individual law enforcement is looking for is uploaded and compared with faces that are extracted real-time from live security video feeds (a match would alert a law enforcement officer nearby that camera). Ultimately, a human determines who the final match is based on the list of candidates.

Image by George C. Palaidis

The report uncovered some startling discoveries, as I’m sure you could expect. The first problem is that no state has passed a law comprehensively regulating police face recognition and there are no known agencies which require warrants to search these enormous databases of photographs. This means law enforcement agencies are free to use and search the systems without any guidelines, boundaries, or parameters restricting their use.

Many major police departments are also now exploring real-time face recognition on live surveillance camera videos (like the giant cameras you’ll see on street corners in New York City). This same technology could also be applied to body cameras and dashboard cameras as both are used by more and more law enforcement agencies.

Since there are no laws or rules regarding the use of the technology, most agencies have no rules prohibiting officers from using face recognition to track individuals engaging in political, religious, or other protected free speech.

Further, little is done to ensure that the systems are even accurate, and the human (police officer) factor utilized to determine if a candidate photo is in fact a match is largely wrong (typically wrong about half of the time). These systems also tend to disproportionately affect African Americans.

Here in Florida the Pinellas County Sheriff’s Office has a system called FACES (Face Analysis Comparison & Examination System) that searches over 33 million faces, including 22 million Florida driver’s license and ID photos and over 11 million law enforcement photos. Florida law enforcement can also search the FBI’s database of 24.9 million mug shots. Using the system, the FBI’s Florida field office and 243 other local, state, and federal agencies run close to 8,000 monthly searches without requiring even a reasonable suspicion before running a search!

Regardless of whether you've committed a crime or not, Florida law enforcement agencies are using your driver’s license photo (along with other photographs) to create a virtual line-up when looking for the identity of a suspect accused of a crime. And you have no say in the matter.

You may ask ‘what’s the big deal if I’m not guilty of anything?’ Well, an experiment was conducted by a professor at Michigan State University which ran police security camera photos of the Tsarnaev brothers, who committed the Boston Marathon bombings, against a database of a million driver’s licenses. The system did find the younger brother in a match of 10 possible candidates, but it also identified nine other people who were clearly not guilty. What would have happened if law enforcement had used that system in searching for the bombers and showed up at the homes of the nine other people?

We already run into the same problem with eye witness identification and photo lineups. I once successfully represented a client accused of armed robbery who was “identified” using a drawing from a police sketch artist based on the description from the victims. Another officer thought the sketch resembled my client, and he was arrested solely on that identification. Needless to say, the sketch looked nothing like my client. But he was stuck in jail for months as I had to gather the evidence to prove to the prosecutor that my client was innocent. Even after passing a polygraph, the prosecutor was unwilling to dismiss the case. On the eve of trial the proper decision was made and the case was dropped, but during that time period my innocent client had to sit in jail where he couldn’t work, pay bills, be with his family, and had suffer the stigma of this serious criminal charge.

These same problems can and will arise as law enforcement agencies move headstrong into face recognition technology and systems without any guidance, laws, or regulations keeping it in check. The report makes several recommendations, including: passing comprehensive laws regulating law enforcement’s use of face recognition; that police should not run face recognition searches of license photos without clear legislative approval; that accuracy tests should be created and expanded to ensure the highest accuracy with the systems; and that community leaders should press for policies and legislation that protect privacy, civil liberties, and civil rights.  

We’ve seen it many times in the movies and in real life: technology can be a good and useful thing, but it can also be manipulated and abused, whether intentionally or not. This new and evolving technology should be held in check to prevent any misuse and abuse by its users. Otherwise it could be you identified in a virtual lineup based on your driver's license photo and accused of a crime you just didn't commit.

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.

Fighting "Junk" Sciences Resulting in Wrongful Convictions

You have watched CSI or NCIS, right? Maybe the Forensic Files? You’ve seen how the “bad guy” was found using bite-marks, hair analysis, fingerprints, firearm identification, shoe-prints, or even DNA. Thousands of convictions solely from those forensic sciences. What if I told you these “junk” sciences were essentially debunked by a top government report released last week?

The report, titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” comes from the President’s Council of Advisors on Science and Technology (PCAST), which was tasked by President Obama back in 2015 to consider whether additional steps could be taken to strengthen the forensic-science disciplines and ensure validity of forensic evidence. PCAST compiled and reviewed more than 2,000 papers, submissions and other reports in preparing its report.

This report took to task seven forensic feature-comparison methods, even finding some methods “far from meeting the scientific standards for foundational validity.”

So what does this really mean? Well the report looked at “feature-comparison methods” which are methods that compare two samples to see if there is a match based on identified features. Basically, feature-comparison methods work like this: the Crime Scene Tech shows up at a crime scene and takes some sample of evidence (a photograph, a sample of blood from the ground, a partial fingerprint) and brings it back to the lab in an evidence bag. Then at the crime lab, an examiner analyzes that sample from the scene and attempts to compare it with samples of from known sources, such as an already identified suspect. A “match” means the police have ‘found their man.’

Five years at the Miami-Public Defender’s Office as an assistant public defender, and another three years in private practice as a criminal defense attorney, has shown me that the “match” is not always as it seems. Now the government and scientific community is catching up and providing valuable research and evidence challenging for the first time what has been held as infallible science.

The PCAST report looked at first at foundational validity of the method and then validity as applied. Foundational validity of a method means the method is based on studies and evidence and that it can be repeatable, reproducible, and accurate at levels that have been measured and are appropriate – in essence, the method is reliable.  

Validity as applied focuses more on how the method is applied in practice. For example, did the tech reliably apply the method in the case?

In essence, is the method reliable and did the examiner reliably apply the method in the case.

What the report found should be shocking, at least to those who don’t practice daily in criminal law.

As to DNA, what many consider the infallible forensic science, the PCAST report found that depending on the type of analysis (single-source/simple-mixture sample vs. complex-mixture samples) there were several factors that can and do cause errors, whether based on the foundational validity or, more frequently, as applied when human error comes into play. Errors can come into play where the tech inappropriately collects the sample from the scene, or in sample mix-ups, contamination, incorrect interpretation, and errors in reporting.

The PCAST report also found serious issues with latent fingerprint comparisons (comparing a partial fingerprint from a crime scene with known prints taken in a controlled setting). This field is highly subjective because it requires examiners to analyze that partial print to find certain characteristics and then compare those with other prints. Many of these examiners are also members of law enforcement and the prosecution team, thereby carrying an inherent bias that shouldn’t exist in a scientific setting.

The report noted that some studies have found false positive rates at 1 error in 306, and even 1 in 18! Yet these fingerprint identifications are sometimes the sole evidence used to convict defendants in criminal courts. Remember that the FBI announced a print from the 2004 Madrid train bombing was a perfect match to an American lawyer, but that was quickly debunked by Spanish law enforcement whom identified a different individual as the source of the print.

Bite-mark analysis was another “science” that PCAST reviewed. As the name suggests, the tech compares mark left on a victim or object with the dental impressions taken from a suspect. The PCAST report found bite-mark analysis is “far from meeting the scientific standards for foundational validity.” That examiners couldn’t agree on whether an injury is a human bite-mark surely assisted in that conclusion.

The report also found that firearm, footwear, and hair analysis were not foundationally valid as there were no real studies or empirical evidence backing up the methods as repeatable, reproducible, or accurate. A 2015 Department of Justice (DOJ) and FBI report that reviewed 3,000 criminal cases involving hair analysis discovered that in more than 95% of those cases the FBI examiners provided scientifically invalid testimony that was used to inculpate or implicate he defendant. Convictions based off of “junk” science.

All of this is important because judges and jurors in this country are often presented “scientific” evidence that is “100% certain” or that have “zero,” “essentially zero,” or “negligible,” error rates. The reality is that much of the so-called forensic sciences aren’t based off of any science at all, but are resulting in the convictions of thousands of innocent criminal defendants. And criminal defendants, when presented pre-trial with this “scientific” evidence, often are compelled to plead guilty for a negotiated sentence rather than go to trial because of the misplaced trust so many have in this “scientific” evidence.

That’s why it’s important for not only criminal defense lawyers like myself to be familiar and proficient in attacking this evidence, but also for the community at large to challenge these “scientific” methods that have long been held to be infallible, and for the scientific community to develop scientifically valid methods to ensure the innocent aren’t wrongly convicted.  

It is important that we start now in challenging this evidence, because there is no guarantee that past convictions will get the review they should receive. As Federal Judge Alex Kozinski noted in a recent commentary in the Wall Street Journal, even though a 1997 DOJ report impugned 13 FBI lab examiners involved in more than 7,600 cases (64 capital murder cases), by 2014 only 312 had been reviewed to determine whether convictions were obtained through discredited methods.

I would certainly suggest that criminal defense attorneys review the full report, but I’d recommend everyone take a few minutes to read the 20 page Executive Summary. The PCAST report is not only eye opening, but offers quite a few of important recommendations to fix the problems presented today and to work towards eliminating wrongful convictions. 


George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.