Crime and punishment roundup

  • Bloodstain analysis convinced a jury Julie Rea killed her 10-year-old son. It took four years for her to be acquitted on retrial, and another four to be exonerated. Has anything been learned? [Pamela Colloff, ProPublica] Forensics’ alternative-facts problem [Radley Balko] The chemists and the coverup: inside the Massachusetts drug lab scandal [Shawn Musgrave, Reason, earlier here, here, here, etc.]
  • “I would say, you know, as a parting gift, if you’d like to throw in some iPhones every year, we would be super jazzed about that…. So, you know, a hundred, 200 a year.” A window on the unusual business of prison-phone service [Ben Conarck, Florida Times-Union, state Department of Corrections]
  • Should juries be forbidden to hear any evidence or argument about their power of conscientious acquittal? [Jay Schweikert on Cato amicus in case of U.S. v. Manzano, Second Circuit; related, David Boaz on 1960s-era jury nullification of sodomy charges]
  • This hardly ever happens: prosecutor disbarred for misconduct [Matt Sledge, Baton Rouge Advocate; Louisiana high court revokes license of Sal Perricone following anonymous-commenting scandal]
  • “Cultural impact assessments”: Canadian courts weighing whether race should play role in sentencing minority offenders [Dakshana Bascaramurty, Globe and Mail]
  • “The Threat of Creeping Overcriminalization” [Cato Daily Podcast with Shon Hopwood and Caleb Brown] “Tammie Hedges and the Overcriminalization of America” [James Copland and Rafael Mangual, National Review]


  • RE: disbarment—what about the attorneys in the Jeffrey Epstein case?

    They lied to victims, and that violated their duties as a prosecutor. Ticket should be pulled.

  • Radleys article is why I have such a problem with stare decisis in the legal system. In the physical world of science and engineering, if new facts on the behavior of a system or product come to light, they are darn well taken into account. In some cases, what was previously considered safe products are pulled from the market. What is it about the culture of the legal system that makes this same idea so difficult?

    • What’s missing from both Radley Balko’s and Pamela Colloff’s articles is when or whether defense (or even the courts, sua sponte) raised any Daubert motions at trial to oppose the admissibility of blatantly unscientific “blood spatter” evidence and “bite mark” evidence presented by soi-disant “experts” with virtually no actual scientific training, or knowledge and practice of scientific method.

      Although it may be possible to make some scientific factual findings from blood spatter or bite marks, the “experts” testifying in the cases presented were difficult to distinguish from crystal ball gazers, or worse, rigged carnival game hucksters.

      Any court with integrity should raise Daubert issues sua sponte when considering such “experts”.

  • Re: Chemists—Martha Coakley strikes again. Scott Brown is to be forever commended for keeping her out of the US Senate.

  • In Jay Schweikert’s article on jury nullification/conscientious acquittal, I can only wonder why “modern cases (perhaps erroneously) do not generally afford defendants the right to argue for conscientious acquittal”?

    I’m retired LE and have assisted prosecution and been the source of prosecution on many cases and even I can’t fathom the logic behind obfuscating or prohibiting the jury from understanding that conscientious acquittal is a thing or discussing the consequences of conviction. Can anyone tell me the legal reasoning? I’m not as interested in opinion, just the basic whys.

    • In short:

      The Jury must determine what the facts are.

      The Judge must instruct the Jury what the law is.

      Therefore, a defense attorney informing a jury about their right to acquit as a matter of conscience is an usurpation of the Judge’s obligation and (s)he may disallow it.

      • Except nullification, even if provable, is not reversible on appeal.

        Yes, the judge must instruct the jury way the law is, but the jury has the right to judge the law rather than the defendant.

        • He asked for the reasoning, not opinions.

          In my opinion it is wrong for judges to prevent juries from hearing about their rights and responsibilities. But I don’t make the rules and many judges are jealous of their position as interpreter of the law. They don’t want defense attorneys contradicting their jury instructions which are typically in the form of “If you find facts A and C, you must bring in a verdict of B”.

  • “Most African Canadian children are from birth trapped in a vicious cycle of societal rejection and isolation, poverty, low expectations, and low educational achievement,..”

    It would seem paradoxical to use a cultural impact assessment as explanation for/mitigating circumstance of the defendant’s action for the very reason of perpetuating low expectations, as cited in the same article. so are we then to perpetuate low expectations, which is alleged to be part of the problem to be fixed.

    The Way to Stop Discrimination on the Basis of Race Is to Stop Discriminating on the Basis of Race

  • Mandatory minimums and informed juries–

    How about–

    When a jury convicts on a charge carrying a mandatory minimum, the defense should have the right to reveal the mandatory minimum and ask the jury to re-consider. But in that case, the jury would also hear all the factors that go into the mandatory minimum, eg prior convictions.

    I am not sure whether to give the jury a power to reduce the mandatory minimum, as a compromise short of nullifying the charge entirely.


  • Canadian “cultural impact” case–

    I wonder if the judge thought the defendant had a legitimate self-defense argument, brushed aside by an anti-gun prosecutor and anti-gun jury. This could be an indirect route to helping him.