Friday, July 26, 2013

High-Tech, High-Risk Forensics

July 25, 2013 | New York Times OpEd

High-Tech, High-Risk Forensics

SAN FRANCISCO — WHEN the police arrived last November at the ransacked mansion of the millionaire investor Raveesh Kumra, outside of San Jose, Calif., they found Mr. Kumra had been blindfolded, tied and gagged. The robbers took cash, rare coins and ultimately Mr. Kumra’s life; he died at the scene, suffocated by the packaging tape used to stifle his screams. A forensics team found DNA on his fingernails that belonged to an unknown person, presumably one of the assailants. The sample was put into a DNA database and turned up a “hit” — a local man by the name of Lukis Anderson.

Bingo. Mr. Anderson was arrested and charged with murder.

There was one small problem: the 26-year-old Mr. Anderson couldn’t have been the culprit. During the night in question, he was at the Santa Clara Valley Medical Center, suffering from severe intoxication.

Yet he spent more than five months in jail with a possible death sentence hanging over his head. Once presented with Mr. Anderson’s hospital records, prosecutors struggled to figure out how an innocent man’s DNA could have ended up on a murder victim.

Late last month, prosecutors announced what they believe to be the answer: the paramedics who transported Mr. Anderson to the hospital were the very same individuals who responded to the crime scene at the mansion a few hours later. Prosecutors now conclude that at some point, Mr. Anderson’s DNA must have been accidentally transferred to Mr. Kumra’s body — likely by way of the paramedics’ clothing or equipment.

This theory of transference is still under investigation. Nevertheless, the certainty with which prosecutors charged Mr. Anderson with murder highlights the very real injustices that can occur when we place too much faith in DNA forensic technologies.

In the end, Mr. Anderson was lucky. His alibi was rock solid; prosecutors were forced to concede that there must have been some other explanation. It’s hard to believe that, out of the growing number of convictions based largely or exclusively on DNA evidence, there haven’t been any similar mistakes.

In one famous case of crime scene contamination, German police searched for around 15 years for a serial killer they called the “Phantom of Heilbronn” — an unknown female linked by traces of DNA to six murders across Germany and Austria. In 2009, the police found their “suspect”: a worker at a factory that produced the cotton swabs police used in their investigations had been accidentally contaminating them with her own DNA.

Contamination is not the only way DNA forensics can lead to injustice. Consider the frequent claim that it is highly unlikely, if not impossible, for two DNA profiles to match by coincidence. A 2005 audit of Arizona’s DNA database showed that, out of some 65,000 profiles, nearly 150 pairs matched at a level typically considered high enough to identify and prosecute suspects. Yet these profiles were clearly from different people.

There are also problems with the way DNA evidence is interpreted and presented to juries. In 2008, John Puckett — a California man in his 70s with a sexual assault record — was accused of a 1972 killing, after a trawl of the state database partially linked his DNA to crime scene evidence. As in the Anderson case, Mr. Puckett was identified and implicated primarily by this evidence. Jurors — told that there was only a one-in-1.1 million chance that this DNA match was pure coincidence — convicted him. He is now serving a life sentence.

But that one-in-1.1 million figure is misleading, according to two different expert committees, one convened by the F.B.I., the other by the National Research Council. It reflects the chance of a coincidental match in relation to the size of the general population (assuming that the suspect is the only one examined and is not related to the real culprit). Instead of the general population, we should be looking at only the number of profiles in the DNA database. Taking the size of the database into account in Mr. Puckett’s case (and, again, assuming the real culprit’s profile is not in the database) would have led to a dramatic change in the estimate, to one in three.

One juror was asked whether this figure would have affected the jury’s deliberations. “Of course it would have changed things,” he told reporters. “It would have changed a lot of things.”

DNA forensics is an invaluable tool for law enforcement. But it is most useful when it corroborates other evidence pointing to a suspect, or when used to determine whether any two individual samples match, like in the exonerations pursued by the Innocence Project.

But when the government gets into the business of warehousing millions of DNA profiles to seek “cold hits” as the primary basis for prosecutions, much more oversight by and accountability to the public is warranted. For far too long, we have allowed the myth of DNA infallibility to chip away at our skepticism of government’s prosecutorial power, undoubtedly leading to untold injustices.

In the Anderson case, thankfully, prosecutors acknowledged the obvious: their suspect could not have been in two places at once. But he was dangerously close to being on his way to death row because of that speck of DNA. That one piece of evidence — obtained from a technology with known limitations, and susceptible to human error and prosecutorial misuse — might mistakenly lead to execution at the hands of the state should send chills down every one of our spines. The next Lukis Anderson could be you. Better hope your alibi is as well documented as his.
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Osagie K. Obasogie, a professor of law at the University of California, Hastings, and a senior fellow at the Center for Genetics and Society, is the author of the forthcoming book “Blinded by Sight: Seeing Race Through the Eyes of the Blind.”

Tuesday, July 16, 2013

Closing Argument Second Degree Murder Trial Self-Defense Stand Your Ground Florida July 2013

Introduction: On January 31, 2013, my client MM was arrested for the charge of second degree murder. The case went to trial the week of July 8 - 12, 2013, at the same time as another high profile case. This trial received no press coverage and therefore the jury could concentrate on applying the law to the facts as they determined them to be.

   Below is the closing argument I prepared. Arguments as delivered are usually different. I use initials or made-up names in the summation so as to not cause anyone unnecessary discomfort.

Closing Argument    Florida v. MM   July 12, 2013

      "What makes America great? Why do people come here from all over the world? For opportunity, yes. But also for freedom. What do we mean by that?  That in our country, a person cannot be convicted of a serious crime unless the Government can prove its charge. At the very beginning of this trial, the prosecutor told you to hold the State to its burden of proof, and in a few minutes the Judge will tell you that must you do that. This is the highest burden of proof under our system of laws and means you must be firmly convinced that M M did not act in self defense. Proof is different than speculation. Proof means that there are reliable witnesses and competent evidence that leave no reasonable doubt about guilt.
       This is the first and easiest reason why the verdict in this case should be not guilty. The State of Florida has a theory of the case but they have no proof. They have not brought in a single witness who saw this fight and who say anything different that what M M told the police. They haven’t brought in a single piece of evidence to prove who brought the knife or who started the fight or to show you what happened during the fight.

A verdict of Not Guilty technically means “not proven.” It doesn’t mean that a jury approves of what happened and in fact it doesn’t mean that a jury is convinced of a Defendant’s innocence.  It simply means that the Government tried its best but failed to present sufficient evidence under the law to justify a conviction and that there are reasonable doubts about whether or not a Defendant is guilty. And the Judge will tell you that reasons to doubt a case can arise from the evidence or can arise from conflicts in the evidence or can arise from the lack of evidence. And in this case there is a complete lack of evidence to overcome the other main principle of law, which is that you must presume M M to be innocent and give him the benefit of the doubt unless it is proven otherwise.

Really I could stop right here. But in this case there is a much more important reason to find M M Not Guilty and that is because he is innocent and the evidence demonstrates he was acting in necessary self defense.

 Every living creature understands self preservation and in human beings it is something that is an essential component of our lives. We go through life avoiding danger and hoping we are never in a position where we must defend ourselves or our families but when we are threatened with death or with great bodily harm our instincts take over and we do whatever we must in order to protect ourselves. And that is what happened here. M M was suddenly attacked by a larger man with a knife and M M got lucky. He got lucky because they hit the ground and he was able to get hold of the knife and he was able to fight off his attacker and he was able to escape and he is still alive. And it is very unfortunate that Mr. E lost his life but under these circumstances our laws recognize that M M did not commit a crime, because this was a justifiable homicide:



The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant.

    How do we know that M M is innocent? How do we know that he was acting in self defense? How do we know that the verdict in this case must be not guilty? We know because of what happened afterwards.
      Now the prosecutions theory is that he fled from the scene and tried to cover-up his crime but really, that’s not what the evidence in this case shows. Here’s what we know:
 --within an hour of this fight, M M called the Sarasota Police Department. They didn’t have to go find him, he contacted them of his own free volition.
--That in this phone call M M struggled to overcome the language barrier so that he could cooperate with the police department and follow their instructions.
--That in this phone call he correctly identified himself and explained why he had left the scene.
--That in this phone call he told them where he was and what kind of car he was driving;
--That in this phone call when it became clear to him that the police wanted to talk with him, he took the next exit and pulled over into a gas station.
--That at this gas station he enlisted the help of the Clerk who could speak English to assist the police in locating him;
--That he voluntarily waited for law enforcement to arrive and did not resist arrest but was fully cooperative;
--And that he then went to a police station and agreed to answer all the questions that the Detectives had for him and then cooperate with all of the photography and DNA procedures that they asked of him.

     So is it really accurate for the prosecution to ask you to infer that M M tried to hide evidence? Yes he washed up and changed his shirt but he didn’t try to hide anything and was completely cooperative with the investigation.

    All of his actions are the actions of an innocent man, not a guilty man. And you should keep all of this in mind when you are evaluating what M M told law enforcement. Think of the very first thing that he told them:

--“I got in a fight with this person and he tried to kill me” and that is the essence of this case. You heard all of the rest of his statements and I am not going to review them again right now, but there is something else important, and that is it is important that you got to hear not just what he said, but how he said it.
     It is important that you got to hear how he was with Officer A and how M M expressed himself and how cooperative he was. It is important that you got to hear how he was with the Detectives during the interrogation, that you got to hear how scared he was, that you got to hear how sad he was when he was told that Mr. E had died, and that you got to hear how he stood up to the Detectives when they challenged him. You have seen the transcripts but if you need to hear the recordings again, all you have to do is ask, and I encourage you to do so, because he was telling the truth.

--How else do we know that M M was telling the truth? Because we can see that his injuries are consistent with what he told the police. We can see cut on his arm that he suffered during the initial attack by Mr. E, we can see the red marks around his neck where he was grabbed by Mr. E. The prosecution may argue that these were minor injuries and we say thank goodness that he wasn’t injured more but the law does not require that you wait around and suffer great bodily harm before you are allowed to defend yourself, you are allowed to defend yourself to prevent great bodily harm, the Judge will tell you that you can use deadly force to prevent someone from committing an aggravated battery or a forcible felony upon you.

The judge will tell you to judge M M by the circumstances with which he was faced at the time and whether he actually believed that he was in real danger. And when you are making that decision, you can consider all the reasons M M believed he was in danger. You can consider the fact that Mr. E is a much larger individual than M M; you can consider the fact that Mr. E had a reputation as a violent and aggressive and dangerous person; and you can consider the fact that Mr. Morales knew this about Mr. E, because he was aware that Mr. E had previously killed two people in Mexico.

Well then why go over there if Mr. E was so dangerous? It is Because M M did not realize what danger he was in until the attack began. He knew Mr. E and he had associated with him and he had smoked with him in the past and M M thought that it was important that they discuss the situation that had developed with Ally. The big mistake that M M made is that he told on Mr. E. He told Mora that he had been out with Ally and when he came home, Mora asked him about that and it is important that it was Mr. E who called M M and told him to come back and M M did not know that he was walking into an extremely dangerous situation.

During the interrogation, the  Detective  continuously suggest to MM that he could have gotten away from Jesus once the fight began and M. M: "Now, I know I could have run, but at that moment when you’re being attacked and someone wants to kill you, you can’t, decide, um, if you’re going to run or you’re going to stay…” What he is communicating is that he had to make a split second decision about how best to protect himself, just like we heard from one of the jurors during the jury selection in this case; and just like Florida law addresses:
     Show Jury this Poster
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

Now the prosecution argues that Mr. E was unarmed and they would like you to speculate that M. M is the one who started this fight and who brought the knife that was in evidence so let’s examine that claim for a moment. First off there is absolutely no proof of that assertion and I remind you that M. M has consistently denied that he brought the knife and that Ally consented to a search of her apartment and that no similar knives were found during that search and if there was a search of Mr. E’s trailer it was apparently a very cursory search and the Crime Scene Technician did not even document that in his report and could not even tell you what areas of that trailer were looked at.

So the State is relying on the testimony of Mora and so I must talk about her for a moment. I think it is natural that we all feel sympathy for Mora and for her loss but the Judge will tell you that you should not be influenced by feelings of sympathy and that you must not decide this case because you feel sorry for anyone. And you will be instructed how to judge the testimony of a witness and you will be told to consider whether the witness had an opportunity to see and know the things about which the witness testified and whether the witness had an interest in how the case would be decided and whether the witness made an consistent statement at some other time. And so in considering the testimony of Mora you should think about her relationship with Mr.  E and you should consider whether or not she could even know whether he was in possession of this knife, and you should consider the testimony of JG.

Keep in mind that J.G is M M’s ex-wife and that she has little to do with him over the last several years, and keep in mind that she is the assistant manager of this trailer park and that she knows all of the people there and that she was with Mora immediately after the fight, and that at that time Mora told her that Mr. E had grabbed the knife and gone to fight M M.

And keep in mind that in the courtroom Mora testified repeatedly that after Mr. E had returned home that they had not discussed the reason for MM’s visit and that they had not discussed the issue with Ally and that she maintained this testimony until she was confronted with the fact that she had said something entirely different to Detective L.

And so while we all may be sympathetic to Mora, you as the jury in this case must ask yourself whether her testimony is the kind of reliable information upon which you would base one of the most important decisions you will ever be called on to make.

And just a few words about some of the other evidence in this case. First off, the testimony of Dr. B, the medical examiner. I am very sorry that you had to endure that testimony and look at the graphic photographs in this case. But what is important about those photos is that they do not show an unprovoked attack upon Mr. E. Rather, what they show is a dynamic struggle, and they are entirely consistent with what M M told the police. Yes, he thought he stabbed Mr. E twice, and there are more wounds than that. But he also describes to the police how he was swinging the knife to ward off Mr. E’s attack, and that despite this, Mr. E continued to pursue him.  The injuries to Mr. E’s hands are not necessarily defensive wounds, but are entirely consistent with a struggle over the knife. And the autopsy confirmed what M M told the police, that Mr. E had been drinking and smoking marijuana.
    Are the injuries that Mr. E suffered terrible? Yes they are, but really they are nothing more than you would expect given the circumstances of this fight and the fact that there was this life or death struggle over the knife.

Finally, there are the text messages between Ally and MM. Now the prosecutions theory is that because these messages show Jealousy, that they prove that M Mwent over to do harm to Mr. E. But is that what they really show? I would suggest that all that these messages show is that M M and Ally are human, and that means they make the same mistakes and have the same faults that all humans do. It’s just that in these modern times in which we live, what used to be very private conversations are now preserved for all time for anyone to see, thanks to text messaging. But what is really important about these messages is what is not in there. MM never says anything threatening about anyone, it is clear that he wants to know what Ally and Mr. E did, but not because he wants to hurt anyone. And keep in mind that there were phone calls taking place between the two of them as well, and that their final conversation around 5:30 was that MM was going to go to the gym and then come home and help Ally cook dinner. This is consistent with what MM told the police, and with the fact that he went over to Mr. E’s trailer with only his shorts and his t-shirt and tennis shoes.

At the end of this case, the most important instruction that you will hear from the Judge is this one: 
Show Jury this POSTER (RD self defense)
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.

 Why is this the law? Because in the United States of America, we have made the determination that the Only thing worse than being falsely accused is to be falsely convicted. Don’t let that happen to M M. He acted in self defense, the homicide of Mr. E was justifiable, and the lawful verdict in this case is NOT GUILTY.

I thank you very much for your service."

After four hours of deliberation, the jury returned a verdict of Not Guilty.