When a crime is allegedly committed, the police and the prosecution can often seize items related to the crime. This can sometimes happen when the owner of the property is completely innocent. In tough times, this has created a conflict of interest in the police and prosecutors. They can easily make a ton of money to help their departments at the expense of innocent individuals. Two bills were recently introduced in the Michigan Legislature to place some modest limits on this problems. HB 5213 would require a criminal conviction before a forfeiture action could be filed. HB5081 tightens up the reporting requirements on the forfeiture so that problem departments can be identified in the future.
In Apprendi v New Jersey, the Court held that a State could not avoid the reasonable doubt standard by shifting elements of a criminal offense to the sentencing phase. The Court stated that factors which raised penalties are de facto elements which must be proven beyond a reasonable doubt to a jury. Over the last ten years, the Michigan Supreme Court has continuously rejected this argument despite the fact that the United States Supreme Court has been consistently expanding the Apprendi doctrine.
Last year, I blogged about a United States Supreme Court rolling called Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), which I thought was the last nail in this flawed argument’s “coffin.” How wrong I was.
Yesterday, a panel of Michigan Court of Appeals rejected the Elaine challenge in People v Herron, Court of Appeals No. 309320. The court distinguished every United States Supreme Court case along this line based and distinctions which this author believes are irrelevant. If they willing of our Court of Appeals is mirrored by the Michigan Supreme Court, the only remedy that a defendant world will receive is likely to be from the United States Supreme Court. Stay tuned, this issue is far from over.
Mr. Herron is represented by Christine Pagac at the State Appellate Defender’s Offender’s Office.
Brady v Maryland prosecutors to disclose all evidence which is exculpatory in nature or which mitigates punishment. Unfortunately, in our adversarial system prosecutors are often tempted to bury this evidence. The problem comes with the fact that the person exercising this judgment has a conflicting obligation Moschus is to try and convict a defendant. What prosecutor is theoretically the Minister of Justice career advancement is normally based on convictions. Prosecutor to conceal evidence rarely phrase discipline for doing so and I virtually never prosecuted.
Kenneth Olsen was charged with developing chemical weapons of mass distraction. There was evidence presented at trial that he was attempting to develop the chemical ricin. The quantities impurities of this drug however were so low that the government was going to have a difficult time proving that the defendant had any intent to injure other people. To overcome this, the assistant United States attorney call Arnold Meinkhoff as their expert witness. Prosecutor concealed an internal investigation which showed huge problems with this expert witnesses integrity or level of care. Fourteen of his one hundred investigations which were audited showed serious problems.
This was never turned over to the defense counsel. The majority of the Ninth Circuit Court of Appeals upheld this nondisclosure. A majority of United States Court of Appeals for the Ninth Circuit then denied en band rehearing.Judge Kozinski not only dissented from the results in that case, but noted that Brady violations had reached epidemic proportions.
Judge Kozinski further wrote:
“The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."
The problem is systemic. Prosecutors cannot be trusted to determine what evidence must be turned over to undercut their cases. Courts need to move this determination from the prosecutor to an independent master. Similarly forensics needs to be moved from an adversarial branch government to a branch under the court which is not incentivized in anyway to call a matter in one want manor or the other. These experts also need to be shielded from the other evidence and opinions in the case so that all they are determining is based on the evidence they are charge with investigating.
It is easy to think that you would stand your ground if you are actually innocent, but what would you do if they offered you probation for an offense you did not commit versus twenty years in the joint if the jury convicts. The Acceptance of Responsibility scorings on the Sentencing Guidelines were meant to create an acceptable difference. It gives you about a 15% discount on the average sentence for pleading guilty. The practices outlined by the New York Times are highly problematic.