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But For Video: Philly Edition

By Scott H Greenfield

(A Kavita Media Presentation. Please email comments here.)

It was a simple bust, as Police Officer Steven Lupo explained.
It looked like an open-and-shut case. A cop pulls over a car, walks up to the driver's door, and sees a plastic baggy of marijuana. He brings in a drug-sniffing dog to prove probable cause for a search, gets a warrant, and finds a kilo of weed in the trunk.
Text book all the way.  The request for a medal for excellence almost writes itself.  On cross-examination, Michael Diamondstein played the "are you sure" game, locking Lupo into his testimony.  Close your eyes and envision the smug cop on the stand, calmly testify with that half-smile on his face, believing that he, Police Officer Lupo, was king of the courtroom.
In court, Diamondstein asked Lupo to confirm that account, according to a transcript of the hearing.
"Before you got to Mr. Farsi, did you open the rear driver's side passenger door and take that individual out and pat him down?"
"No," Lupo said.
Then Diamondstein asked, "I just want to make sure that we are clear that you certainly didn't just open the door prior to any conversation, take him out, and pat him down. That definitely didn't happen?" Diamondstein said.
"Correct," Lupo replied.
Change the names and this could be the transcript from a thousand other trials.  Except what came next doesn't happen often.
Then defense attorney Michael Diamondstein produced the video.
Turned out reality was different.
The video taken from nearby surveillance cameras contradicted key facts in Lupo's report and sworn testimony. Most crucially, Lupo and an unidentified supervisor are seen rummaging through the trunk hours before a warrant was issued.
Straight down the line, Lupo lied, secure in the mistaken belief that he could plop his donut encrusted butt on the witness chair and tell a completely fabricated story about how he's just about the dandiest cop ever, just doing his job, applying the Constitution and keeping us safe from the bad guys.  Except he was a liar, and Diamondstein had the video to prove it.

Judge Lydia Y. Kirkland tossed the case after the video was played.  Had no video been played, she would have been sentencing the defendant instead.
"I can just tell you from my experience," said veteran defense attorney Diamondstein, "in the majority of cases, while the clients may not deny having narcotics, in the vast majority of cases the circumstances surrounding the arrest did not happen as it was described in the paperwork or in court."
Years ago, New York Daily News columnist Murray Kempton coined the phrase, "there they go again, framing the guilty."  It's one I repeat often, as its point reflects the most problematic part of law enforcement and law.  Despite the fact that Lupo turns out to be a liar, there will be a great many people who think to themselves, "so what?"  The guy was a drug dealer, and who cares that a cop stopped a drug dealer, seized the drugs and then said what he had to say to lock the scum away.

The ends justify the means, especially when there's an undercurrent that if it wasn't for criminal-coddling technicalities that make a cop's job so difficult, he wouldn't have any need to lie.  In fact, in a perfect world, there wouldn't have been a trial at all, Lupo's word being all any law-abiding citizen needed.

This story was sent to me by a young Philadelphia civil litigator who was shocked (shocked!) that police officers would so brazenly l! ie.  He was outraged that such a thing could happen.
If they don't press charges against the police officer for perjury, then our system of justice is a joke.  I don't practice criminal law, but it's like the courts downright refuse to make the police and prosecutors follow any of the rules, unless it's so egregious that it ends up on the news.  (like Duke Lacrosse).  One way of looking at this is the prosecutor proffered perjured testimony... (though I hope the cop just lied to the DA).
To anyone who has spent time in the criminal law trenches, this has to raise a chuckle.  Even the implicit epiphany misses most of the problem.  Lupo wasn't a lone indian, but working with his partner, and later a supervisor, all of whom studiously violated as many constitutional rights as they could get their hands on. What of the partner? What of the supervisor?  They were all complicit, both in the violation of constitutional rights as well as the conspiracy to lie to the court.  No one came forward to out Lupo's lies.

But the bigger picture, as Diamondstein notes (and Kempton reiterated decades ago), is that this isn't the outlier, but the norm.  There's a game played in courtrooms, where testimony is provided that conforms to what naive or compliant judges and juries expect of police officers.  But cops know how things go in the streets, and laugh at the law.  They do what they think they have to do, what the b! elieve they can get away with, and tell the story to the court they know it wants to hear. 

When it's only a bad guy involved, there's no hard feelings.  It's a game.  We fight over rules, and they lie about them to put the bad guy in prison.  Everyone goes home feeling pretty good about themselves.

Had Diamondstein not been able to get his hands on a video that proved Lupo a liar, the case would have gone down the usual path.  Lupo would have gotten another ribbon for his shield, and the defendant would be doing some time in the pokey.  The judge wouldn't have broken a sweat buying the testimony and imposing sentence, and the prosecutor would have enjoyed a beer and the admiration of his friends for a job well done.

There was a video, this time. 

After the video was played, and Lupo's lies were revealed to even the blindest person in the room, the brazenness wasn't over.
After seeing the video, Kirkland took over questioning. In response to her questions, Lupo admitted that his testimony about never having searched the trunk was incorrect.
"I totally forgot about he asked me to open it at one point," Lupo said, referring to the supervisor on the scene.
"Without a warrant?" Kirkland asked. "Did you have a warrant?"
"No," Lupo said.
He forgot.  All is forgiven.  Try that with anyone other than a cop and see how well it works out.

Prohibit Admission of Eyewitness Testimony

By Scott H Greenfield

(A Kavita Media Presentation. Please email comments here.)

Why is unreliable eyewitness identification any different from unreliable anything else?

-- Associate Justice Antonin Scalia, at oral argument in Perry v. New Hampshire,

Yet again, Justice Scalia says what needs to be said, clearly and decisively.  Why indeed?  Of the many burdens placed on judges in their role as gatekeeper of evidence at trial, one of the most critical is the preclusion of unreliable testimony.  And of all unreliable evidence, none is more dangerous than eyewitness testimony.

If only law followed its obvious, natural course.  Oral argument in Perry produced widespread recognition of the indisputable fact that there is no evidence more persuasive and yet more unreliable.  Via Adam Liptak at the New York Times:

“I understand you have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony,” Justice Elena Kagan told Richard Guerriero, a lawyer for Barion Perry, a New Hampshire man convicted of theft based in part on the testimony of a woman who said she saw him from a distance late at night.

Very good empirical evidence doesn't begin to cover it. There is no single piece of evidence that has been subject to as much scrutiny as eyewitness identifications, and the empirical evidence is overwhelming, beyond dispute, whether reasonable or not, that it's uniquely unreliable and singularly persuasive.  If nothing else, it's clear that unreliable eyewitness identifications contributed to 75% of wrongful convictions. 

So what does a court, in order to protect the due process of individuals hauled before it and subjected to the potential of imprisonment, maybe even death, do about this ridiculously unreliable and persuasive piece of evidence?

Most of the justices did not seem inclined to order a hearing in such circumstances, in part because of the lack of a limiting principle. Why stop with eyewitness evidence that was the product of suggestion? Why stop with eyewitness evidence at all?

Mr. Guerriero responded that eyewitness evidence is “probably the leading cause of miscarriages of justice” and should be treated with special care.

But Justice Kagan said the problems with such evidence may not be unique.

“Eyewitness testimony is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think,” Justice Kagan said.

So it's not the only unreliable evidence?

“What about all the other safeguards that you have?” she asked. “You can ask the judge to tell the jury, ‘Be careful; eyewitness testimony is often unreliable.’ You can point that out in cross-examination.”

“You can say something about it in your summation to the jury,” she went on, adding that the rules of evidence, as opposed to the Constitution, also allow the exclusion of some kinds of unreliable evidence.

“Why aren’t all those safeguards enough?” Justice Ginsburg asked.

The question may have been posed as a rhetorical, but there's a very good answer.  Because it's failed to suffice forever. Because part of the mythology is that eyewitness testimony is the best, most certain assurance around.  Because judges don't allow lawyers to argue without evidence presented to the jury, and they won't allow defense lawyers to present empirical evidence that isn't directly material.  Because this doesn't happen in the real world the way Supreme Court justices imagine it should.

The justices also mused about other forms of evidence and information, including fingerprints, DNA, crystal balls, tea leaves and information obtained through torture. But they seemed persuaded by a lawyer for the federal government, Nicole A. Saharsky, who argued in support of state prosecutors in the case.

“Taking the question of reliability away from the jury,” Ms. Saharsky said, “would be a very big change in our system.”

Exactly, except Nicole Saharsky isn't arguing against the admission of unreliable evidence, but for it.  The state is arguing for the power to convict based on evidence that is empirically known to be terribly unreliable because it knows that it's the most certain way to convict a defendant.  It's as if she argued that if the court takes away her unreliable evidence, she'll never be able to convict anyone of a crime, the guilty as well as the innocent. 

The argument before the Supreme Court laid out exactly what one would have expected, hoped for.  The proof of unreliability was accepted, as it could not be denied.  The impact was recognized, as it could not be denied.  And the justices embraced it, as they could do nothing else.

And yet, the justices were completely, utterly unmoved.

Assuming defense counsel is permitted to argue to the jury, even in the absence of testimony to support the argument, that eyewi! tness identification is inherently unreliable, it flies in the face of what everyone knows, what everyone believes, that there is no evidence more damning.  There is nothing with greater emotional force than a victim who says, with voice quivering, eyes fixed, that she will never forget that face.  There is no juror who watches this scenario play out whose heart is so cold, mind so clear, that she can say to herself, but this isn't true.

And that's why we need an appellate court, a cold, rational group of justices, to save us from a universal belief that's overwhelmingly appealing, and utterly wrong, protect the integrity of our process, the uphold the due process of every individual subject to conviction, from the ubiquity of unreliable evidence.  Because that's what courts exist to do, and our Supreme Court would never fail us so miserably. 

And if Justice Scalia's view pervails, all unreliable evidence will fall with it, as no rational judge could ever suggest that our legal system should em brace outcomes based on unreliable evidence.


The Skinner Connundrum

By Scott H Greenfield

(A Kavita Media Presentation. Please email comments here.)

Hank Skinner will eventually get the DNA tests he wants.  The only question is whether he'll be dead already.

“We are deeply disappointed that the trial court has denied Mr. Skinner’s request for DNA testing.  Unfortunately, the trial court’s order offers no explanation for its conclusion that DNA testing is not called for in this case. It will now be up to the Court of Criminal Appeals to give Mr. Skinner’s case the deliberate consideration that is necessary to ensure a correct result.  We are confident that upon such careful review, the Court will conclude that DNA testing is necessary in this case to ensure the reliability of the verdict.  But for now, the Court of Criminal Appeals must stop the scheduled November 9 execution rather than allow itself to be rushed to a hasty and ill-considered decision.  The stakes in this case are too high to allow Mr. Skinner to be executed before he has a fair chance to make his case that the trial court made a grave mistake in denying his request for DNA testing.”

- Robert C. Owen, attorney for Hank Skinner
- November 3, 2011

For those of us who breath non-Texas air, this seems to go beyond the realm of stupid.  We strain to understand why.  Why, given that the Texas legislature has enacted a law for the purpose of enabling an inmate to seek DNA testing even when his lawyer failed to do so before trial?

Last June, both houses overwhelmingly passed a revision to the DNA testing law to clarify that inmates should be able to request testing even if their counsel did not request any at trial. Lawmakers even cited Skinner’s case in passing the legislation. Hank Skinner, it seemed, would finally get his DNA tests.

Yet the issue lingers, awaiting a ruling, while the execution proceeds with a speed that makes no sense at all.

November 9 is fast approaching.  There's nothing magical about the date, compelling a judge to fix it so firmly, to resist every attempt, and all reason, to move it down the road sufficiently to get a ruling on Skinner's right to have the DNA tested.  Sure, assuming that the ruling is against him, there will be an appeal, and that it will mean more delay before he gets his chance.  And then there's the delay awaiting the actual testing.

So many potential causes for delay.  So what?  What is the need to rush the execution of Hank Skinner?  What fear strikes at District Attorney Lynn Switzer's heart that compels her to fight the testing?

Dallas County District Attorney Craig Watkins, in the meantime, has reportedly decided that it's his duty to free Dale Duke, imprisoned since 1997, because he's innocent.

 "The original prosecutor's failure to provide critical information to the defendant coupled with overwhelming evidence that the initial allegations were false, convinced me that Mr. Duke was wrongfully convicted. After a thorough review of the case, I approved a recommendation to ask the court to exonerate Mr. Duke."
But as I've been told by my friends in Texas, Dallas really isn't Texas. It's just some northern city mistaken plopped down in the wrong placeFor terrific background on Hank Skinner, read Radley Balko's piece at Huffington Post.  For a rational explanation of why Hank Skinner can't get DNA evidence tested, there's no place to go.  As for why Hank Skinner is scheduled to be killed on November 9, it's a Texas thing. One would have thought that a rational adult in a position of sufficient power would have put a stop to this idiocy before we came so close to November 9th.  In light of the ruling that his killing will proceed on the appointed date, one would be wrong.

This is just nuts.  And to anyone who would complain that Hank Skinner is a horrible murderer who deserves to die, the issue would ha! ve been over a decade ago if they just conducted the DNA testing in the first place and put the issue to rest.  You don't kill first and test later.  You don't kill first and deny testing.  And yes, if it were up to me, you wouldn't kill at all


For almost 25 years, Scott H. Greenfield has represented clients charged with crimes or the targets of investigations in state and federal courts across the United States. Scott has been awarded an AV rating, the highest possible, from Martindale Hubbell, and is recognized in “Who’s Who” in the world, America and American Law. He has served as a legal expert and analyst for television news shows from “60 Minutes” to “20/20”, and ABC, NBC, CBS, BBC, Court TV and Fox.

Scott’s cases have been the subject of a book, magazine articles and television shows. Scott is regarded as one of a handful of top criminal defense lawyers who excels in both trial work and appeals. His written work is considered some of the best in the nation, often writing Op-Eds, Amicus briefs and Editor Letters for Bar Associations and other well known lawyers. Scott is a lawyer’s lawyer, representing other attorneys, their family members and even judges when they find themselves in a jam. More info:

Disclaimer: The views and opinions expressed in these columns are solely those of the writers/interviewees and do not necessarily represent those of the editor/publisher.