Forensics roundup


  • Re: Moonlight fire. All this dubiousness, and a clear abuse of power by the federal government, and the Supreme Court decided not to intervene. But Roberts wants to tell us that there are no Obama judges/Bush judges etc.

    Perhaps, the Chief Justice, and SCOTUS as a whole should less worry about Trump’s over the top rhetoric and focus more on abuses that get the stamp of approval of our federal court system.

    • What a curious non sequitur to draw from the Moonlight Fire case. Both the Chief Justice and the rest of us are capable of multitasking, and can both 1) work on improving the performance of the federal judiciary and 2) object to Trump’s various bad statements.

      If SPO imagines that judges appointed by Democrats never restrain federal government abuses of power, he imagines wrongly. Indeed, a recurring theme of the past presidential term was that the Obama administration’s aggressive claims to authority were repeatedly rebuked by both wings of the Supreme Court, including justices appointed by that administration itself.

      • First of all, the idea that there is no difference between Obama/Clinton judges and Republican judges is silly. There is. And the judiciary, which should value candor above all else, should acknowledge this, notwithstanding the “reputational” issues that might arise. Kim McLane Wardlaw, a Clinton Ninth Circuit judge has authored four, count ’em four, opinions that have been summarily reversed. That’s not an isolated problem. Check out Judge Eric Clay’s opinions in Bobby v. Bies. Or how about the ridiculous stay votes of a bunch of Dem judges in the 11th Circuit—the issue was the identity of the maker of LI drugs, when the drugs had been tested for purity and shown to be pure. So Roberts is wrong on the merits and looks like a fool for saying what no one believes. (Else of course, we wouldn’t have the fights in the Senate, now would we?)

        Second, and relatedly, while it is true that Roberts has the ability to walk and chew gum at the same time, his pronouncement prompts a retort of “clean up your own house” first. That an appalling injustice can get a judicial stamp of approval is a stain on our judiciary and our society as a whole. For the people involved, the Constitution might as well not have been adopted. An embarrassment, and tut-tutting over Trump saying out loud (how gauche) what we ALL know, is a cruel joke. Time to clean up your own house, Chief.

        Third, Roberts’ pronouncement also reinforces the unfortunate “lese-majeste” culture we have in the USA. Judges, lest it be forgotten, are public servants and should act as such at all times. When judges are wrong on the law, they should be ruthlessly criticized. (So, for example, I would have no problem with saying that, as a result of Zadvydas v. Davis, Justices Breyer and Ginsburg have blood on their hands.) And what’s the defense to that? Presumed good faith? Sorry, no dice.

        Yes, Democratic judges/justices did push back on some of the more egregious Obama abuses–but certainly not all of them. Were you cool with the Gibson Guitar raid? But yeah, some federal court rubber stamped the abuse.

        And where is our fine friend Justice Roberts on the Judge Sullivan hearing circus on Flynn? Yeah, I get the “no comment on pending cases” but when we have a federal judge intimating that a decorated General is somehow a traitor, things have gone off the rails, and that’s an embarrassment. But Trump is the bete noire?

  • Regarding the body cam footage used to indict the Detroit police officers. I’m amazed that the footage used for home invasion charges didn’t mysteriously disappear or that the camera didn’t malfunction at the precise moment of the home invasion.

  • Just out of curiosity, in the first blurb, is it missing a link to a Radley Balko post or article?

    The link goes to the ruling.

    Am I missing something?

    Just curious.

    And btw….Merry Christmas.

    • Whoops! You are right. It was a tweet and I’ve now added the link.

      Merry Christmas!

  • You might also include the fact that some states pay their crime labs a bonus for each conviction. In Florida:
    938.055?Operating Trust Fund of the Department of Law Enforcement.—Notwithstanding any other law, the court may assess a defendant who pleads guilty or nolo contendere to, or is convicted of, a violation of any provision of chapters 775-896, without regard to whether adjudication was withheld, in addition to any fine and other penalty provided or authorized by law, an amount of $100, to be paid to the clerk of the court, who shall forward it to the Department of Revenue for deposit in the Operating Trust Fund of the Department of Law Enforcement to be used by the statewide criminal analysis laboratory system for the purposes specified in s. 943.361. This amount shall be assessed if the services of a local county-operated crime laboratory enumerated in s. 943.35(1) are used in connection with the investigation or prosecution of a violation of any provision of chapters 775-896.

    938.07 provides for the state crime labs to get $50 for each DUI conviction.

    No perverse incentive there. Nosirree.
    I believe that Pennsylvania has a similar arrangement. No doubt other states do as well

    • Wouldn’t this be part of every cross examination by defense of the state’s forensic team, much as questioning experts about about their incentives?
      And any defense lawyer failing to do so would be committing malpractice, and/or giving path to appeal?