The Texas Tribune reports that Gov. Perry has not decided whether or not he will grant the reprieve and said that any decision to test the DNA will be decided in the courts.

My question for Gov. Perry is what is there to think about? The man has been on death row for 15 years; what is the harm in giving him just 30 more days to determine once and for all if he is guilty or not? The state cannot give Skinner his 15 years back if the state turns out to be wrong but he could at least live the rest of his life a free man. The state obviously cannot give Skinner his life back once the state takes it from him, however.

Whether you oppose the death penalty or not we can all agree that the state should at least make every reasonable effort to ensure that the person being put to death by the state actually committed the crime. This is not an unreasonable request.

The execution is scheduled for March 24, 2010 so there isn’t much time left to act (see the contact information below).

Opinion Lines
Texas callers: (800) 252-9600
Out of state callers and Austin residents: (512) 463-1782

Office of the Governor, Main Switchboard (from 8:00 a.m. to 5:00 p.m. CST): (512) 463-2000

Office of the Governor Fax: (512) 463-1849

The Innocence Project also has an easy petition that only takes a few minutes to fill out.

Related: Former Texas Prosecutor and Judge Both Believe the State Has Executed More Than One Innocent Man

Former Texas prosecutor Sam Millsap wrote an op-ed piece in The Houston Chronicle explaining why he believes the courts should grant Skinner’s request, if for no other reason, to learn the truth. He also pointed out that only a week ago, Gov. Rick Perry pardoned Tim Cole posthumously some 9 years after he died while in prison. Why wouldn’t the same governor want to avoid making the same mistake again?

Millsap:

I’m not an advocate for Hank Skinner. I’m an advocate for the truth. If DNA tests could remove the uncertainty about Skinner’s guilt — one way or the other — there’s not a good reason in the world not to do it […]

[…]

It is cases like Skinner’s that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.

From there Millsap gets personal and explains why he, acting in good faith, may have been responsible for prosecuting an innocent man who was executed in 1993.

Why the change of heart? Millsap explained that one of his star witnesses against Ruben Cantu recanted his testimony 20 years later. Millsap said he believes the witness’s latest version of the events because the witness had nothing to gain from changing his testimony “except a whole lot of trouble.”

Beyond Cantu, Millsap also believes Texas has executed at least two other men he says “were almost certainly innocent”: Carlos DeLuna, executed in 1989 and Cameron Todd Willingham, executed in 2004.

Millsap is by no means the only individual inside the Texas criminal justice system who recognizes inherent flaws in the system which kills more people every year than any other state. State District Judge Kevin Fine recently granted a pretrial motion declaring the death penalty unconstitutional due to his belief that innocent people have been executed in Texas and elsewhere:

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It’s safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society’s standard for decency and fairness.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don’t think society’s mindset is that way now.”

The article goes on to point out that Judge Fine’s ruling will likely be overturned on appeal and is more symbolic than anything else (i.e. a way to force people to discuss the issue of the death penalty). Fine is taking quite the career risk in a very pro-death penalty state which elects its judges. His critics, who like to point out that Judge Fine is a former cocaine addict, argue that his ruling has no basis in the law.*

And maybe Judge Fine’s critics are technically right** about his “judicial activism,” but can anyone really argue with the judge’s logic? Is it possible for sates to execute only guilty individuals 100% of the time when states have admitted to wrongfully convicting others for lesser charges? If not, what is the acceptable margin of error when we are talking about allowing the government to kill?

These are the kinds of questions which I hope keep Gov. Perry up at night with the scheduled execution of Hank Skinner and those who will undoubtedly follow.

* Though I would point out that the state killing an innocent person would certainly be contrary to Natural Law if not Constitutional Law.

** Though this point could be debated at this blog ad nauseam among The Liberty Papers contributors and readers without coming to a satisfactory consensus. I default to life, liberty, and property interests and therefore would agree with how the judge has handled the death penalty case that came before him. WWJAND (What would Judge Andrew Napolitano do?)

Unlike libertarians, most conservatives simply don’t want small government. They want their own version of big government. Of course, they have done a pretty good job of fooling American voters for decades by repeating the phrases “limited government” and “small government” like a hypnotic chant.

It’s interesting that conservatives only notice “big government” when it’s something their political enemies want. When conservatives want it, apparently it doesn’t count.

- If a conservative wants a trillion-dollar foreign war, that doesn’t count.

- If a conservative wants a 700-billion-dollar bank bailout, that doesn’t count.

- If a conservative wants to spend billions fighting a needless and destructive War on Drugs, that doesn’t count.

- If a conservative wants to spend billions building border fences, that doesn’t count.

- If a conservative wants to “protect” the huge, unjust, and terribly inefficient Social Security and Medicare programs, that doesn’t count.

- If a conservative wants billions in farm subsidies, that doesn’t count.

It’s truly amazing how many things “don’t count.”

Benedict went on to point out the lack of concern these same people had with the government expansion of President Bush and the health care mandates of another CPAC favorite – Mitt Romney.

While I’m by no means a supporter of the Obama Administration, the idea that many Conservatives seem to have that all the problems we are faced with started on January 20, 2009 is completely ludicrous**.

These are the same people who would gladly support Sarah ‘the Quitter’ Palin, ‘Mandate’ Mitt Romney, or ‘Tax Hike Mike’ Huckabee – none are what I would call ‘limited government’ by any stretch of the imagination.

*And even the anarchists among us who oppose all government regardless of size

**Ditto for those Bush haters of the left who believes every problem we face now began 8 years prior. If we are honest, the problems we face today go back at least as far back as Woodrow Wilson (and probably even before him)

Crystal Mangum, 31, was arrested late Wednesday on charges including assaulting her boyfriend, Durham police said in a press release.

Durham County jail records indicate she also was charged with identity theft, communicating threats, damage to property, resisting an officer and misdemeanor child abuse. A judge ordered that she remain in jail on a $1 million bond. Mangum had no attorney listed Thursday.

Authorities released the audio of a 911 call in which a girl who said she was Mangum’s 9-year-old daughter called for help.

Police said they found Mangum and Milton Walker fighting when they arrived at the home just before midnight. Mangum then went into a bathroom and set some clothes on fire in a bathtub, police said.

For most readers who have busy lives but still try to follow the news of the day, the name Crystal Mangum probably doesn’t ring a bell.

Why should it?

For those who didn’t know or need reminded, Mangum was only the lying skank who falsely accused several members of the Duke Lacrosse team of raping her in 2006. The general public did not know her name, at least in the beginning, due to the MSM’s ridiculous* ‘rape shield’ policy which kept the media to keep from revealing Mangum’s identity. By the time Mangum was exposed as a liar, the media’s ‘rich white male jocks rape poor, defenseless, black woman’ template no longer worked and the media lost interest in the story (though some gave at least some passing mention of her past before moving on to the next story). Curiously, Al Sharpton was also nowhere to be found.**

Though I knew the media was done with Crystal Mangum, somehow I knew that one day I would see her name in the paper again. She was never subject to the kind of scrutiny the Duke Lacrosse players received by the media (and certainly not the courts).

Now Mangum is the one in the hot seat with her credibility all shot to hell. The burden of proof will be on her accusers and the prosecution that she is guilty beyond a reasonable doubt in a court of law. But as the Duke Lacrosse players know all to well, the court of public opinion requires quite a lot less proof.

As tempting as it may be to smear Mangum by posting every rumor, conjecture, and tabloid story, I for one will do my best to separate the garbage from the truth (admittedly, not an easy task). While the truth may set most individuals free, I tend to believe that in this case at least, Mangum will finally receive the poetic justice she richly deserves.

* I say these policies are ridiculous for the following reasons:

1. The purpose of the policy is to ‘shield’ legitimate rape victims from any shame associated with being a victim of a rape. I find this notion that a victim of a violent crime should feel ashamed completely offensive. Any person who is willing to publicly face his or her attacker should be celebrated not pitied. Had Mangum’s name been made public, perhaps her past would have gotten the investigators’ attention sooner and she would have been exposed as the liar she is much sooner.

2. While the accuser’s identity is not made public, those who stand accused (before having the opportunity to have the case even go to trial) identities are made public.

** Does anyone happen to know if Sharpton still gave Mangum the ‘No Strip Scholarship’ once she was exposed?

Greg Taylor, convicted of 1st degree murder of prostitute Jacquetta Thomas in 1993, was the first to be exonerated by the commission after serving 16 years of a life sentence. One who isn’t familiar with the details of the case may assume that Taylor’s conviction was an honest mistake since DNA testing was in it’s infancy in 1993. According to this Associated Press article, however; the commission found a very disturbing omission by the prosecution which could have cast reasonable doubt (if not excluded altogether) on Taylor’s guilt.

Defense attorneys worked to cast doubt about the initial case built against Taylor, and a State Bureau of Investigation agent testified that complete blood test results were excluded from lab reports presented at trial.

The agent’s notes indicated that samples from Taylor’s SUV tested positive for blood in preliminary tests but were negative in follow-up testing, which wasn’t disclosed during the prosecution.

But rather than drop the charges against Taylor, prosecutors went forward with the case anyway and successfully convicted him. The jury was denied access to this critical evidence and Taylor’s liberties were taken from him as a result.

Hopefully, those who failed to disclose the results of the blood test will pay some sort of price but I have serious doubts. Until Taylor is compensated one way or another, this injustice is far from being set right.

System of a Down
“Prison Song”
Toxicity (2001)

Written by: Tankian, Serj;Malakian, Daron;Odadjian, Shavarsh; and Dolmayan, John

They’re trying to build a prison,
They’re trying to build a prison,

Following the rights movements
You clamped on with your iron fists,
Drugs became conveniently
Available for all the kids,
Following the rights movements
You clamped on with your iron fists,
Drugs became conveniently
Available for all the kids,

I buy my crack, my smack, my bitch
right here in Hollywood.

Nearly 2 million [*] Americans are incarcerated
In the prison system, prison system,
Prison system of the U.S.

They’re trying to build a prison,
They’re trying to build a prison,
They’re trying to build a prison, (for you and me to live in)
Another prison system,
Another prison system,
Another prison system. (for you and me to live in)

Minor drug offenders fill your prisons
You don’t even flinch
All our taxes paying for your wars
Against the new non-rich,
Minor drug offenders fill your prisons
You don’t even flinch
All our taxes paying for your wars
Against the new non-rich,

I buy my crack, my smack, my bitch
right here in Hollywood.

The percentage of Americans in the prison system
Prison system, has doubled since 1985,

They’re trying to build a prison,
They’re trying to build a prison,
They’re trying to build a prison, (for you and me to live in)
Another prison system,
Another prison system,
Another prison system. (for you and me to live in)
For you and I, for you and I , for you and I.

They’re trying to build a prison,
They’re trying to build a prison,
They’re trying to build a prison,
For you and me,
Oh baby, you and me.

All research and successful drug policy show
That treatment should be increased,
And law enforcement decreased,
While abolishing mandatory minimum sentences,
All research and successful drug policy show
That treatment should be increased,
And law enforcement decreased,
While abolishing mandatory minimum sentences.

Utilizing drugs to pay for secret wars around the world,
Drugs are now your global policy,
Now you police the globe,

I buy my crack, my smack, my bitch
right here in Hollywood.

Drug money is used to rig elections,
And train brutal corporate sponsored
Dictators around the world.

They’re trying to build a prison,
They’re trying to build a prison,
They’re trying to build a prison, (for you and me to live in)
Another prison system,
Another prison system,
Another prison system. (for you and me to live in)
For you and I, for you and I , for you and I.
They’re trying to build a prison,
They’re trying to build a prison,
They’re trying to build a prison,
For you and me,
Oh baby, you and me.

*This number has since increased to about 2.4 million according to the Sen. Webb’s findings.

A full 8 months later, the time has truly come. Sen. Jim Webb’s (D-VA) bill S.714, the National Criminal Justice Commission Act of 2009, is scheduled to be before the Senate Judiciary Committee tomorrow.

The purpose of the bill is as follows:

SEC. 3. ESTABLISHMENT OF COMMISSION.
There is established a commission to be known as the `National Criminal Justice Commission’ (referred to in this Act as the `Commission’).

SEC. 4. PURPOSE OF THE COMMISSION.
The Commission shall undertake a comprehensive review of the criminal justice system, make findings related to current Federal and State criminal justice policies and practices, and make reform recommendations for the President, Congress, and State governments to improve public safety, cost-effectiveness, overall prison administration, and fairness in the implementation of the Nation’s criminal justice system.

America accounts for 5% of the world’s population but a staggering 25% of the world’s reported prisoners. This statistic seems to be at odds with those of us who want to believe our nation is a “free” and “just” nation.

Also, its worth pointing out that this commission will give the war on (some) drugs some much needed scrutiny (as the graphs below show, drug offenses account for more than half of the prison population).

Source: Bureau of Prisons as of February 2009

I have already contacted my senators, now its time to do your part. If you don’t want to spend much time on writing an e-mail or letter, NORML has an easy form to fill out here (the message goes directly to both of your Senators even if you don’t happen to know who your Senators are).

With your help, perhaps this bill will pass. This will be a great first step in combating the prison industrial complex.

The Denver Post is having guest columnists who are staunchly pro-legalization write persuasive and articulate articles which could be mistaken for something you might read here at The Liberty Papers. Here’s an excerpt from an article written by Robert Cory Jr.

Today, not much about Colorado’s economy moves. The state is broke and releases prisoners because it cannot afford to keep them. The governor slashes the higher education budget 40 percent. People lose jobs, homes and financial security. Our leaders face serious issues.

And what keeps some politicians up at night? That sneaking suspicion that some suffering cancer patient may gain limited pain relief through medical marijuana, coupled with that gnawing certainty that someone, somewhere, actually grew the plant for that patient.

But government cannot repeal the laws of supply and demand, and cannot extinguish the spark of freedom in peoples’ hearts. Now, the marijuana distribution chain becomes legal. Responsible entrepreneurs open shops to supply a skyrocketing demand for medicine. These small businesses serve needy patients. They pay taxes. They hire employees. They lease space. They advertise. And the drug war industrial complex can’t stand it.

The article only gets better from there. I find it very encouraging that Colorado’s newspaper of record would print this and that citizens are pushing back against big government, if only on this issue.

Here’s a thought Mr. Suthers: rather than trying to interpret the law yourself, why not allow the state legislature and/or Colorado voters clarify the law. In the meantime, while the law in your opinion is vague, err on the side of freedom by no longer prosecuting medical marijuana users or dispensary operators.

Greeley (Colorado) City Council member Carrol Martin also expressed concerns with the Obama Administration’s change in federal policy: “The federal government says they’re not going to control it [medical marijuana], so the only other option we have is to control it ourselves” and “If we have no regulations at all, then we can’t control it, and our police officers have their hands tied.”

Councilman, I would argue that this is a very good thing. You are no longer responsible for enforcing federal laws but state and local laws regarding medical marijuana. Your police officers “have their hands tied”? I think it’s quite the opposite councilman. Your police department can now concentrate on violent crime rather than spend valuable resources on going after non-violent, medicinal, marijuana users and their suppliers. If anything, the Greeley police has their hands freed!

In a time when we have an administration which wants to control banking, housing, the auto industry, the healthcare industry, and everything in-between we have one instance of the same administration relinquishing control and giving it back to the states. This is the perfect opportunity for states to act as independent laboratories of government. Some will pass stricter controls on medical marijuana (or outright ban it) while others may go the other direction and outright decriminalize or leagalize marijuana altogether.

Kirk Johnson writing for The New York Times:

Some legal scholars said the federal government, by deciding not to enforce its own laws (possession and the sale of marijuana remain federal crimes), has introduced an unpredictable variable into the drug regulation system.

“The next step would be a particular state deciding to legalize marijuana entirely,” said Peter J. Cohen, a doctor and a lawyer who teaches public health law at Georgetown University. If federal prosecutors kept their distance even then, Dr. Cohen said, legalized marijuana would become a de facto reality.

Senator Morrisette in Oregon said he thought that exact situation — a state moving toward legalization, perhaps California — could play out much sooner now than might have been imagined even a few weeks ago. And the continuing recession would only help, he said, with advocates for legalization able to promise relief to an overburdened prison system and injection of tax revenues to the state budget.

This seems like a very reasonable step to take for California from a purely economic standpoint. As I reported in my post Reforming America’s Prison System: The Time Has Come, last year California spent almost $10 million on corrections, more than half of the U.S. prison population accounts for drug offenses, 75% of state drug offenders are non-violent offenders, and that nearly half of all drug arrests in the U.S. were for marijuana offenses.

By my math, that would mean that if California* released all non-violent marijuana users and stopped prosecuting new cases involving non-violent marijuana use, the state could cut its prison population by 19% and save California taxpayers about $2 million** per year just on corrections (to say nothing of other costs associated with policing marijuana use).

If California or any other state tried such a bold approach, the American public would most likely learn that legalization does not lead to the sort of mayhem drug warriors have warned us of over the decades***. We would most certainly not see the sort of mayhem that has occurred via the drug war.

Not only does this perfect storm which the Obama Administration created have possible implications for the War on (Some) Drugs, but the very concept of Federalism itself. What might state governments learn about self governing once they have been encouraged to do so? Might the states resist the next attempted power grab from Washington?

There are many exciting possibilities. Those of us who advocate for smaller government should make the most of this opportunity.

*Assuming that California’s prison statistics are in line with the overall national statistics.

** I know $2 million doesn’t seem like a whole lot but in states which are in financial trouble as much as California, every little bit helps.

***Portugal is a real world case study of drug decriminalization; I don’t believe the results would be much different here.

Taser: Don’t shoot stun gun at chest First time company has suggested there is any risk from its stun guns AP – updated 8:23 a.m. PT, Wed., Oct . 21, 2009 PHOENIX – Taser International is advising police agencies across the nation not to shoot its stun guns at a suspect’s chest. The Arizona-based company says such action poses a risk — albeit extremely low — of an “adverse cardiac event.” The advisory was issued in an Oct. 12 training bulletin. It marks the first time that Taser has suggested there is any risk of a cardiac arrest related to the use of its 50,000-volt stun guns, The Arizona Republic reported. Story continues below ?advertisement | your ad here Taser officials said Tuesday the bulletin does not state that Tasers can cause cardiac arrest. They said the advisory means only that law-enforcement agencies can avoid controversy if their officers aim at areas other than the chest. Critics called it a stunning reversal for the company.

We have all of course seen or heard of such incidents as the intransigent elderly woman who was TASED a few months ago in Texas (and many other similar incidents involving the elderly or emotionally disturbed); and most famously of course, of Rodney King, who continued resisting arrest after multiple TASER hits (which is why the officers began beating him. What started as an attempt to physically restrain a violent and intoxicated offender, turned into an emotional free for all).

Less frequently, we hear of someone experiencing cardiac or respiratory arrest, seizures, or nervous system damage from the use of the TASER.

Civil liberties activists have claimed that TASERs have directly caused the death of at least 350 people this decade; and that unjustified use of the TASER device is rampant, with thousands of effective cases of police brutality every year.

I take those claims with a hefty grain of salt.

Unfortunately, it IS clear that there have been a not insignificant number of deaths, either directly or indirectly caused by TASER usage; and that the risks of TASER usage are in fact much higher than law enforcement agencies and individual officers have been trained, or led to believe.

Because of these risks, those same civil liberties activists have called for the TASER device to be banned.

For years, TASER international has utterly denied the possibility of any elevated risk of death or serious injury involved in the use of the TASER.

Today, for the first time, the company acknowledged those risks; but in response suggested something I believe is ridiculous, counterproductive, and may even be harmful. In order to avoid liability, they are advising law enforcement agencies to train their officers to avoid shooting restrainees in the chest…

This is patently ridiculous.

First, the TASER is most effective when shot into the chest. The TASER device works by disrupting neuromuscular co-ordination, and hits outside of center mass are far less effective at causing systemic disruption. Other areas simply do not have the concentrations of nerve and muscle junctions that allow for effective immobilization.

When targeting peripheral areas of the body, effective immobilization may be limited to the localized area of the hit, or to one side of the body. Even hits to the abdomen or pelvis are far less effective in immobilization, (especially on larger restrainees) though they are exceptionally painful.

It is entirely possible (though very difficult) to fight through a TASER hit to a peripheral area, whereas it is nearly impossible to do so with a chest hit (unless you are physically huge, or very high).

It is also standard tactical doctrine for all projectile weapons training to aim for center mass; and it’s damn near impossible to hit a limb in a stressful situation. You don’t want to train officers to shoot for other targets under stress, it will just cause more problems.

Even after the department training officers and lawyers dutifully pass on the message from TASER; officers will, RIGHTLY, ignore this warning.

If you’re going to restrict TASER usage to targeting peripheral areas of the body, you might as well ban their use entirely.

I believe banning TASERs would be a huge mistake, as would changing the targeting area for the device; but clearly something needs to change.

The problem with TASERs isn’t their risks; it’s their doctrine for use.

I’ve been a law enforcement trainer myself, and I’ve been through various less-lethal force training courses, including TASERs. I’ve been TASED several times, and have had several other electro-compliance devices demonstrated on me (to great effect).

Officers are trained to view TASERs as, and to use them as, a less harmful compliance option than direct physical contact; with less risk to both the officer, and the restrainee. The TASER is viewed as a less risky, and less harmful option in the continuum of force.

While the less risk to the officer part is true, the risk of great harm to the restrainee is very high. Much higher than that of chemical compliance techniques, and as high as PROPERLY EXECUTED physical restraint and compliance techniques

Improperly executed physical restraint and compliance techniques, unfortunately present nearly as high a risk of fatality as a shooting; and with much greater risk to the officer. Without extensive training, continuing practice, and exceptional strength and physical fitness; it is very difficult for officers to maintain proper physical restraint and compliance techniques. Even with proper technique, the risk to the officer remains much higher than non-contact restraint and compliance techniques.

It is these issues, which in fact prompted much of the development of less-lethal force technologies; including chemical restraints, and electro-compliance devices like the TASER.

So where does this leave us? Where does this leave law enforcement officers; who are simply looking for a way to effectively restrain subjects, with less risk to the officer, and the subject.

This improper perception of risk has created an environment; especially in smaller law enforcement organizations, with lower training budgets and more permissive attitudes towards the continuum of force; where TASER use is not considered serious.

In general, many officers would prefer to use the TASER than other means of enforcing physical compliance; because it presents the least risk to them, and the most compliant restrainee.

Combined this false perception of low risk, with a more permissive attitude, and the undoubted advantages to the officer; and it is understandable why in many jurisdictions it seems that taser usage is out of control, and suspects are being TASEd almost casually.

The use of the TASER should be understood to be (and officers should be trained to this effect) 1/2 step below the use of a firearm in the continuum of force. Officers should be trained in a more realistic assessment of the risks and dangers of the TASER (and other electro-compliance devices).

Additionally, TASER use in the line of duty, should be reviewed with the same diligence as the discharge of a firearm.

I don’t want to take the TASER away from officers, as it is a useful and excellent tool that in general DOES increase the safety of both the officer, and the restrainee.

What I want, is for officers, and agencies, to understand, and take the risks and impact of TASER usage more seriously.

When Sally Harpold bought cold medicine for her family back in March, she never dreamed that four months later she would end up in handcuffs.

…

Harpold is a grandmother of triplets who bought one box of Zyrtec-D cold medicine for her husband at a Rockville pharmacy. Less than seven days later, she bought a box of Mucinex-D cold medicine for her adult daughter at a Clinton pharmacy, thereby purchasing 3.6 grams total of pseudoephedrine in a week’s time.

Those two purchases put her in violation of Indiana law 35-48-4-14.7, which restricts the sale of ephedrine and pseudoephedrine, or PSE, products to no more than 3.0 grams within any seven-day period.

When the police came knocking at the door of Harpold’s Parke County residence on July 30, she was arrested on a Vermillion County warrant for a class-C misdemeanor, which carries a sentence of up to 60 days in jail and up to a $500 fine. But through a deferral program offered by Vermillion County Prosecutor Nina Alexander, the charge could be wiped from Harpold’s record by mid-September.

You know the only thing worse than a police force given the discretion to determine whether or not a lawbreaker is a real threat to society and should be arrested for a crime — a situation which can lead to unintended consequences of racist enforcement, letting cronies off the hook, etc? A police force which enforces horrible, no-good, very bad laws evenly.

H/T: Reason

I find it pretty depressing. There was a time when we condescendingly used the term “your papers, please” to distinguish ourselves from Eastern Block countries and other authoritarian states. Post-Hiibel, America has become a place where a harmless, 68-year-old man out on a stroll can be stopped, interrogated, detained, and forced to produce proof of identification to state authorities, despite having committed no crime.

Maybe what makes it comical rather than a tragedy is that it happened to a famous guy rather than some ordinary person.

Williams, 33, attended his cousin’s July hearing at Will County Courthouse in Joliet. His cousin, Jason Mayfield, pled guilty to a felony drug charge. As the judge sentenced Mayfield to two years probation, Williams let out a yawn, an involuntary faux pas in such a formal setting.

Circuit Judge Daniel Rozak thought the yawn was criminal and sentenced Williams to six months in jail, the maximum penalty for contempt of court without a jury trial. Rozak’s order said that Williams “raised his hands while at the same time making a loud yawning sound,” causing a disrespectful interruption in court.

I guess it never occurred to me just how much power a judge can have and did not realize that the right of trial by jury as guaranteed by the 6th Amendment evaporates once an individual enters the courtroom. It also seems to me that Williams’ 8th Amendment protection from “cruel and unusual punishment” has been violated as being sentenced to 6 months in jail seem both cruel and unusual to me.

But what do I know? I read the Constitution’s plain language rather than more than 200 plus years of case law which have obscured the meaning of what should be a very simple concept.

That is what we are to believe but is this reliance on forensic science in solving crimes misplaced? The cover story in the August 2009 article of Popular Mechanics makes the argument that the “science” in forensic science isn’t always all it’s cracked up to be.

On television and in the movies, forensic examiners unravel difficult cases with a combination of scientific acumen, cutting-edge technology and dogged persistence. The gee-whiz wonder of it all has spawned its own media-age legal phenomenon known as the “CSI effect.” Jurors routinely afford confident scientific experts an almost mythic infallibility because they evoke the bold characters from crime dramas. The real world of forensic science, however, is far different. America’s forensic labs are overburdened, understaffed and under intense pressure from prosecutors to produce results. According to a 2005 study by the Department of Justice, the average lab has a backlog of 401 requests for services. Plus, several state and city forensic departments have been racked by scandals involving mishandled evidence and outright fraud.

But criminal forensics has a deeper problem of basic validity. Bite marks, blood-splatter patterns, ballistics, and hair, fiber and handwriting analysis sound compelling in the courtroom, but much of the “science” behind forensic science rests on surprisingly shaky foundations. Many well-established forms of evidence are the product of highly subjective analysis by people with minimal credentials—according to the American Society of Crime Laboratory Directors, no advanced degree is required for a career in forensics. And even the most experienced and respected professionals can come to inaccurate conclusions, because the body of research behind the majority of the forensic sciences is incomplete, and the established methodologies are often inexact. “There is no scientific foundation for it,” says Arizona State University law professor Michael Saks. “As you begin to unpack it you find it’s a lot of loosey-goosey stuff.”

This kind of pokes holes into the notion that the evidence doesn’t lie.

Here’s the money quote of the whole article:

[The National Academy of Science report concerning the state of forensic science used in the criminal justice system] specifically noted that apart from DNA, there is not a single forensic discipline that has been proven “with a high degree of certainty” to be able to match a piece of evidence to a suspect.

That’s right; according to the NAS report, ballistics, trace evidence, and even finger print analysis are far from perfect.

A 2006 study by the University of Southampton in England asked six veteran fingerprint examiners to study prints taken from actual criminal cases. The experts were not told that they had previously examined the same prints. The researchers’ goal was to determine if contextual information—for example, some prints included a notation that the suspect had already confessed—would affect the results. But the experiment revealed a far more serious problem: The analyses of fingerprint examiners were often inconsistent regardless of context. Only two of the six experts reached the same conclusions on second examination as they had on the first.

Ballistics has similar flaws. A subsection of tool-mark analysis, ballistics matching is predicated on the theory that when a bullet is fired, unique marks are left on the slug by the barrel of the gun. Consequently, two bullets fired from the same gun should bear the identical marks. Yet there are no accepted standards for what constitutes a match between bullets. Juries are left to trust expert witnesses. “‘I know it when I see it’ is often an acceptable response,” says Adina Schwartz, a law professor and ballistics expert with the John Jay College of Criminal Justice.

The good news, according to the article, is that there are certain forensic techniques which are considered good science:

Techniques that grew out of organic chemistry and microbiology have a strong scientific foundation. For example, chromatography, a method for separating complex mixtures, enables examiners to identify chemical substances in bodily fluids—evidence vital to many drug cases. The evolution of DNA analysis, in particular, has set a new scientific standard for forensic evidence. But it also demonstrates that good science takes time.

So should these other methods which do not have a strong scientific foundation all be junked? Not even the critics of these methods in this article are willing to go that far. The article goes on to explain that these methods should be explained in their proper context to jurors (i.e. strengths and weaknesses, variables which can affect the results, and whether the evidence is exclusionary or qualified supporting evidence, etc.). All of this should be disclosed up front rather than relying on a defense attorney who likely does not have a background in forensic science to identify each problem with the presentation of the evidence.

Of course with the damning NAS report, others like it, and more exposure to the weaknesses of forensic science used in the courtroom by mainstream publications like Popular Mechanics, criminal defense lawyers everywhere now have this in their arsenal to create reasonable doubt in the minds of jurors until expert witnesses are required to give full disclosure regarding the techniques.

“Legalization [of marijuana] is not in the president’s vocabulary, and it’s not in mine,”

- Gil Kerlikowske, director of the White House’s Office of National Drug Control Policy.