Once again, the unreliability of eyewitness indentification testimony has been painfully shown. Rachel Jernigan spent 7 years in a federal prison for a crime she did not commit. Mistaken indentification sounds sad. But consider where you were in March, 2001 (the year of the 9/11 massacre). If everything in your life between then and now was erased from your life, would you just yawn and say, “sometimes life sucks”? Rachel missed a lot of birthdays and anniversaries with her family. Her marriage survived because her husband must be an incredibly loyal man. But they will never even get an apology from “the system” that betrayed and brutalized them.

Eyewitnesses are notoriously inaccurate, yet juries continue to grasp their testimony because they profess to being “100% certain”. Certain, but wrong! Support efforts to remove the contamination of the eyewitness and “Photo ID” process. By the way, have you ever had a photo taken of you that didn’t look much like you? Think about it!

The Georgia Supreme Court has decided that a 10 year (minimum) sentence to a 17-year-old boy who engaged in consensual oral sex with a 15-year-old girl amounted to “cruel and unusual punishment”, probited by the Constitution. He is now free.

Previously, the Court had turned down his appeal. However, the sentencing judge, after calling the 10-year mandatory minimum sentence a “grave miscarriage of justice”, ordered his sentence reduced to 12 months, which the State appealed. This appeal was denied by the Court, meaning the sentence reduction prevailed.

Following the initial sentencing, members of the jury that convicted the boy, and the author of the 1995 law that put him in prison had denounced the sentence in the case.

Acknowledging what many have long suspected, especially since his election as Maricopa County’s elected-Prosecutor, Andrew Thomas, stumbled and mumbled through a press conference yesterday in which he admitted he didn’t know what was happening, at least now that the public has risen in overt protest to his latest heavy-handed attack on the Constitution in the name of “law-and-order”. The courageous publisher and owner of the alternative newspaper, New Times, defied “the law” and challenged the prosecutor and his idiot-in-politics big brother, Sheriff Joe Arpaio, to prosecute them for exercising the First Amendment Right of the newspaper to exercise free speech. They took the bait.
Frustrated that another County Prosecutor was taking too long to act after Thomas conflicted himself off the case, he took the case back and handed it over to his million-dollar (a year!) special prosecutor (and former employer). Promptly, two nights ago, Mr. Special arrested Michael Lacey and Jim Larkin and served subpoenaes on them for their business records relating to Internet usage of readers who accessed the newspaper’s website.
Yesteday, in response to overwhelming public outcry, and ethics complaints filed with the State Bar, Thomas dismissed the charges against Lacey and Larkin, and dismissed Mr. Special from the case.
Too bad political reality wasn’t disclosed. Was Thomas really that ignorant about what was happening here (as, in fairness, he should have been if he conflicted off the case), and therefore not accountable for this fiasco, or was he in the loop until it hit the fan? Because if the special prosecutor is acting independently, how can Thomas now fire him, just because he got caught with his hand in the political cookie-jar?
Thomas is an ambitioius politician, clearly not a prosecutor. It remains to be seen if the voting public has finally seen the glimpse of reality displayed by this hack.

The prosecution recently lost its appeal of Maricopa’s Judge Udall’s order dismissing a prosecution with prejudice for violating a Defendant’s right to a speedy trial. The Court of Appeals sustained the trial court’s action in State v. Almly where Defendant had Arizona charges pending when he was sentenced to prison in California. While imprisoned, he made a written request for final disposition of the Arizona charges. Under Article 111 of the Interstate Agreement on Detainers, the state receiving such a request must try a prisoner within 180 days or the court is required to dismiss the outstanding charges with prejudice. See ARS 31-481. The State failed to timely comply with Defendant’s request. Therefore, the trial court was required to dismiss the charges with prejudice.

As was recently pointed out to me (Thanks for the input Eric): The real signifigance of this ruling is that an appeals court expressly said that the state can not use an article 1V filing to preempt or prevent an article 111 filing. The state tried to argue that they filed an article 1V demand first before the defendant filed an article 111 demand. The appeals court said that is does not matter.

The Arizona Court of Appeals recently held, in State v. LeNoble, that a defendant is entitled to a jury trial when charged with Resisting Arrest, even if the charge is reduced to a misdemeanor before trial. In this appeal, the court-appointed appellate lawyer filed an Anders brief asserting no arguable grounds on appeal were present. Ignoring that analysis by Defendant’s lawyer, the Court found the failure to afford the defendant a jury trial was “structural error” which affected the “entire conduct of the trial from beginning to end” and vacated Defendant’s conviction and sentence.

In the recent Arizona Court of Appeals decision in State v. Barnes, the Court affirmed the decision of the trial court, Cochise’s Wallace Hoggatt, that even where a strip search was warranted, and where there was a reasonable basis for an officer to conduct a visual body cavity inspection, a warrant was mandated to remove an item partially protruding from a body cavity which was discovered during that inspection.

In the recent decision of the Arizona Court of Appeals in State v. Moss, the Court affirmed the ruling of the trial judge, Maricopa’s Judge Douglas Rayes, by ruling that the Confrontation Clause of the Constitution is predominate over Evidence Rule 703 regarding the admissibilty of facts or data relied upon by an expert.

The State could not produce the expert toxicologist who actually performed laborataory tests. The State attempted to have the non-testifying toxicologist’s former supervisor offer his opinion at trial regarding the testing and results. The Court ruled that the failure to produce the criminalist who actually performed the tests denied Defendant the opportunity to confront and cross-examine the witness. Therefore, even though the facts or data reviewed by the supervisor might be of a type usually admitted for a limited purpose [showing the basis of the testifying expert’s opinion], if it is offered to prove the truth of the matter asserted, it is inadmissible hearsay.

In the recent Arizona Court of Appeals opinion in State v. Gonzales, the court held that “ARS 13-604.01 does not provide a sentence for attempted sexual conduct with a minor under the age of twelve.” After noting that it certainly appears that the legislature intended for there to be an even more severe punishment established for such a crime committed against a victim under age 12, the Court observed that, as currently written, the plain language of [the statute] does not encompass attempted sexual conduct with a victim under the age of twelve”. The language of the statute does establish a sentence for such a crime committed against a minor who is twelve, thirteen or fourteen years of age, however.

The Court of Appeals very pointedly stated, “it is not within either the trial court’s or this court’s authority to amend a statute to correct what appears to have been legislative oversight”.

A recent Arizona Court of Appeals decision in In re James P., has held that the crime of Assault is not a lesser included offense of Child Molestation because Assault requires the element of causing physical injury, which Molestation does not require.

In response to a Federal Court of Appeals decision that would have required “Scooter” Libby, Vice President Cheney’s former chief of staff at the White House, to immediately begin serving his prison sentence following his conviction for Perjury and Obstruction of Justice, President Bush has commuted his sentence.

Citing the “harsh punishment for Mr. Libby” of serving two years on probation and paying a $250,000 fine, our President saved Mr. Libby from the “excessive portion” of the sentence, spending 30 months at Club Bureau of Prisons. Defense fund raisers, a former Ambassador, the House Republican Whip and many, many others expressed “great relief” that the President had “the courage to do the right thing today”.

Apparently perjury and obstructing justice aren’t that big a deal if you work for the Executive Branch of Government. I guess this is an act in furtherance of the “family values” portion of the White House platform, aka the “protecting my boys” program.