2017 Criminal Law Seminar

THURSDAY, APRIL 20

CLE Credit 6 state hours which includes 2 hours of Federal credit

Activity ID (In-person) # 255717 Activity ID (Live Webinar) # 255716

Sponsored by the ISBA Criminal Law Section. 2017 Criminal Law Seminar TABLE OF CONTENT THURSDAY, APRIL 20

8:00 - 9:00 - Registration

9:00 - Welcome & Announcements - ISBA Criminal Law CLE Committee

9:00 - 10:00 - Criminal Law Case Law Update - Speaker: B. John Burns, Iowa Federal Public Defenders Office

10:00 - 12:00 - Introduction to Forensic Metrology - Speaker: Ted Vosk

12:00 - 1:00 - Lunch (included with registration)

1:00 - 2:00 - Cell Phone Discovery - Speakers: Angela Campbell, Dickey & Campbell Law Firm PLC and Chad Brewbaker, IT Specialist|

2:00 - 3:00 - In Rem Forfeitures - Speaker: Glen S. Downey, The Law Offices of Glen Downey, LLC

3:00 - 4:00 - Justice Before the Verdict: Fighting Iowa's Cash Bond Problem to Get Better Client Outcomes - Speaker: Steven Drahozal, State Public Defender’s Office

Caveat The printed materials contained in this book and the oral presentations of the speakers are not intended to be a definitive analysis of the subjects discussed. The reader is cautioned that neither the program participants nor The Iowa State Bar Association intends that reliance be placed upon these materials in advising your clients without confirming independent research. 2017 Criminal Law Seminar

Case Law Update

9:00 A.M.-10:00 A.M.

Presented by B. John Burns Iowa Federal Public Defender's Office 400 Locust St., Suite 340 Des Moines, Iowa 50309

THURSDAY, APRIL 20 2016-17 IOWA CRIMINAL CASE LAW UPDATE

outline prepared by B. John Burns Attorney at Law

April 20, 2017

NOTE: All personal opinions expressed in this outline are of the author, and in no way represent the views of the Federal Public Defender or any other person. -ii- I. Constitutional Law...... 1

A. Art. I, Section 8 – Commerce Clause – Federal Jurisdiction – Hobbs Act Drug Robberies B. Second Amendment – Protected Weapons – Stun Gun C. Fourth Amendment -- Warrantless Searches 1. “Government Action” 2. Terry Stops – Terminating Stop After Ground for Stop is Resolved 3. Searches Incident to Arrest – Blood Alcohol Testing 4. Student Searches 5. Searches of Probationers – Special Needs 6. Consent -- Closed Container – Apparent Authority 7. Attenuation D. Fifth Amendment 1. Self-Incrimination – Miranda – Custody 2. Double Jeopardy a. Dual Sovereignty – Puerto Rico b. Issue Preclusion – Inconsistent Verdicts – Retrial After Appellate Reversal E. Sixth Amendment 1. Right to Counsel a. Use of Uncounseled Conviction as a Predicate for Habitual Offender Status b. Attachment of Right – Implied Consent Chemical Test c. Counsel During Questioning – Questioning by Jailhouse Informants d. Counsel of Choice – Freezing Defendant’s Assets e. Ineffective Assistance – Breach of Duty 2. Right to Jury Trial – Right to Impartial Jury a. Batson Claim b. Right to Question Jurors About Deliberations – Racial Discrimination 3. Speedy Trial – Sentencing F. Eighth Amendment 1. Mandatory Sentences for Juvenile Offenders a. Juvenile Sentences of Life Without Parole b. Miller v. Alabama – Retroactive Effect 2. Death Penalty Cases – Victim Impact Evidence 3. Excessive Fines – $150,000 Mandatory Restitution for Offenses Involving Death G. Fourteenth Amendment -- Due Process 1. Vagueness – United States Sentencing Guidelines 2. Admission of Unreliable Evidence 3. Brady v. Maryland – Failure to Turn over Exculpatory Evidence 4. Judicial Recusal 5. Death Penalty Cases II. Substantive Offenses...... 18

A. Assaults – Domestic Assault in Indian Country by a Habitual Offender – Prior Convictions – Uncounseled Convictions B. Bank Fraud – Sufficiency C. Bribery – Official Act D. Extortion – Federal Hobbs Act Extortion – Taking Money from Conspirator E. Insider Trading – Sufficiency – Gifts to Relatives -iii-

F. Motor Vehicle Offenses – OWI – Penalties –- Restitution for “Emergency Response” G. Robbery – Federal Hobbs Act Robberies – Federal Jurisdiction H. Sexual Offenses 1. Federal – Child Pornography – Sentencing -- Enhancement for Prior Convictions 2. Sex Offender Treatment Program a. Non-Sexual Offenses b. Review 3. Sex Offender Registration – Notification of Jurisdiction Offender is Leaving I. Weapons – Federal Possession of a Firearm by Person Previously Convicted of Misdemeanor Crime of Domestic Violence, 18 U.S.C. § 922(g)(9) – Prior Offense – “Use of Physical Force” III. Pre-trial Issues...... 21

A. Rules of Construction 1. General 2. Rule of the Last Antecedent 3. Severability Doctrine B. Jurisdiction – Territorial Jurisdiction C. Appointment of Counsel – Withdrawal – Taxing Costs to the State Public Defender D. Motions and Rulings 1. Motions to Extend Discovery Deadlines 2. Motion for Recusal of Judge 3. Speedy Trial E. Guilty Plea – Required Colloquy – Iowa R.Crim.P. 2.8(2)(b)(2) --Consequences of Plea IV. Trial Issues...... 25

A. Jury Selection 1. Improper Questioning 2. Motion to Disqualify the Jury B. Evidence 1. Sealed Records of Founded Adult Abuse Claims – Iowa Code 2. Iowa R.Evid. 5.404(b) (Other Bad Acts) – Prior Assaults by Defendant 3. Expert Testimony – Iowa R. Evid. 5.703 – Comparative Bullet Lead Analysis – Reliability C. Motions 1. Mistrial – Trial Publicity 2. Post-Trial Motions a. Motion for New Trial – Weight of the Evidence – Proper Standing b. Motions in Arrest of Judgment – Waiver – Sufficient Advice in Written Guilty Plea D. Jury Deliberations – Use of Jury Testimony to Impeach Verdict V. Sentencing......

A Particular Sentences 1. Enhancements for Prior Convictions -- 18 U.S.C. § 924(e) (Armed Career Criminal Act) – Prior Violent Felony 2. Good Time Accumulation – Removal of Minimum 3. Bond Seizure to Pay Costs 4. Restitution a. Mandatory $150,000 Restitution in Homicide Cases – Juveniles b. Reduction for Insurance Payment -iv-

B. Sentencing – Reasons for Sentencing – Consecutive Sentencing VI. Appeal and Collateral Review...... 31

A. Direct Appeal 1. Appealable Issues – Forfeiture of Bond in Sentencing 2. . Preservation of Error a. Constitutional Claims – Assertion of State Constitutional Claims v. Federal b. Federal Plain Error Review – Guideline Computation Error 2. Standard of Review a. Jury Selection b. Sentencing 3. Harmless Error – Structural Error 4. Ripeness B. State Postconviction Relief 1. Availability – Sex Offender Treatment Program Classification 2. Newly Discovered Evidence – Prejudice 3. Remedies – Claim that Guilty Plea Lacked Factual Basis C. Federal Habeas Corpus – Extent of Review 1. Deference to the state court 2. State Procedural Rule 3. Remedies – Retroactive Application of New Rules VII. Miscellaneous Issues...... 36

A. Remedies for Wrongfully Imprisoned Person – Iowa Code § 663A.1(1) -- Guilty Plea -1- I. Constitutional Law

A. Art. I, Section 8 – Commerce Clause – Federal Jurisdiction – Hobbs Act Drug Robberies

Taylor v. United States, ______U.S. _____, 136 S.Ct. 2074, _____ L.Ed.2d _____ (2016) Because, under Gonzales v. Raich, 545 U.S. 1 (2005) Congress possesses the authority under the Commerce Clause to regulate the national market for marijuana, even in cases involving purely intrastate drug transactions, Congress also has the authority to regulate, under the Hobbs Act, 18 U.S.C. § 1951(a), robberies of drug operations, and it is not necessary to prove that the robbery itself has an effect upon interstate commerce.

– Taylor is limited to Hobbs Act robberies of drug operations, and does not necessarily apply to robberies of

other enterprises.

B. Second Amendment – Protected Weapons – Stun Gun

Caetano v. Massachusette, _____ U.S. _____, 136 S.Ct. 1027, _____ L.Ed.2d _____ (2016) A stun gun is among the weapons protected by the Second Amendment after District of Columbia v. Heller, 554 U.S. 570 (2008).

– Justice Per Curiam takes each point of the Massachusetts Supreme Court analysis and explains how it

contradicts the language of Heller, raising the possibility that the state court might have saved the Massachusetts

statute banning stun guns with better analysis.

The Court found three flaws in the state court’s analysis. A stun gun is not protected by the Second

Amendment, the Massachusetts Supreme Court holds, because stun guns “were not in common use at the time

of the Second Amendment’s enactment.” But the Heller opinion makes it specifically clear that the Amendment

extends to weapons not in existence at the time of adoption. Massachusetts then claims it can prohibit stun guns

because they are “dangerous and unusual” – unusual because they did not exist at the time of the enactment

of the constitution. This boils down to the same argument previously addressed and rejected by the Court.

Finally, according to the Massachusetts Court, stun guns are not protected because they are not readily

adapted for military use. But Heller stressed that this was not a requirement. -2-

C. Fourth Amendment -- Warrantless Searches

1. “Government Action”

State v. Brown, ____ N.W.2d ____ (Iowa 2017) An off-duty police officer, concerned that his stepson may be dealing drugs and that the stepson may possess a gun that he may use to harm himself or others, is acting as a stepfather and not a law enforcement officer when he orders the stepson to step out of his vehicle and searches him, finding a gun, and then in a second incident finds marijuana and a gun in a search of the stepson’s vehicle then, in both cases, notifies his superiors who take over the case.

– As this was a case of first impression, Justice Zagar was tasked with selecting which of two tests to

apply in determining whether there was government action, and thus a Fourth Amendment event. The

first is to determine whether the officer is acting as an instrument or agent of the government. The

second is to evaluate the officer’s actions to measure whether they were the actions of law enforcement

or someone acting in a different capacity. Justice Zagar adopted the latter test.

2. Terry Stops – Terminating Stop After Ground for Stop is Resolved

State v. Coleman, _____ N.W.2d _____ (Iowa 2017) Under article I, section 8 of the Iowa Constitution, once the reasonable suspicion that justified the stop of the defendant’s vehicle is resolved, the stop must terminate immediately and completely, to the extent that law enforcement may not even request to see the driver’s license and registration.

– Justice Appel expresses uncertainty as to whether this decision is more extensive in its scope than

the United States Supreme Court decision in Rodriguez v. United States, 135 S.Ct. 1609 (2015). In

his dissent, Justice Waterman is emphatic that it is, in that, under Rodriguez, law enforcement may still

request identification after the purpose of the stop is fulfilled. Because this holding may conflict with

Rodriguez, Justice Appel bases it in the Iowa Constitution.

Trial counsel did not argue this position under the Iowa Constitution, or explain why the

Court should divert from federal interpretation of the Fourth Amendment. Because neither the federal

not the state constitutions were mentioned specifically, the Court felt free to explore the independent

state analysis and supply its own reason for diverging. -3-

3. Searches Incident to Arrest – Blood Alcohol Testing

Birchfield v. North Dakota _____ U.S. _____, 136 S.Ct. 2160, _____ L.Ed.2d _____ (2016) Because of its relatively non-intrusive nature, the testing of breath for blood alcohol is excepted categorically from the Fourth Amendment warrant requirement as a search incident to arrest, while the more intrusive testing of blood is subject either to a warrant requirement or to the necessity of demonstrating an exigency justifying a warrantless test.

– Joined by Justice Ginsburg, Justice Sotomayor took the position that the difficulties of obtaining a warrant for prior breath testing are sufficiently minimal that a warrant should be required for both.

On the other end of the spectrum, Justice Thomas expressed the opinion that both breath and blood testing should categorically be excepted from the warrant requirement as exigent circumstances.

4. Student Searches

State v. Lindsey, 881 N.W.2d 411 (Iowa 2016) Spontaneous statements by a seriously injured high school football player that no one besides a particular friend should handle his equipment bag, together with the student’s history of being suspended from school for drug activity and of being accused in the past of firearms possession generated reasonable suspicion that the bag contained guns or drugs, justifying its seizure by school officials and a search of its contents..

– This suspicion, together with the fact that the bag made a metallic thud when it landed on the ground, justified not only seizing and opening the equipment bag, but also justified searching a second bag inside the equipment bag.

In reaching this result, Justice Appel adopted the federal interpretation of the Fourth

Amendment in New Jersey v. T.L.O., 469 U.S. 325 (1985) under which, while students have reduced expectations of privacy, school searches must be (1) reasonable at the time of inception, and (2) reasonable in their scope.

5. Searches of Probationers – Special Needs

State v. Brooks, _____ N.W.2d _____ (Iowa 2016) A probation officer is entitled to enter the residence of a probationer without a warrant under the special needs doctrine where the entry is prompted by facts relating to the purposes of probation supervision, and not by the purposes of law enforcement.

– The Court reached the same conclusion with respect to searches of parolees in State v. King, 867

N.W.2d 106 (Iowa 2015). Mr. Brooks challenged the entry of the apartment he rented from his father -4- under article I, section 8 of the Iowa Constitution. In Brooks, Justice Mansfield characterized the three factors articulated in King for whether an entry is justified under the special needs doctrine are “(1) the nature of the privacy interest intruded upon by the search, (2) the character of the intrusion, and

(3) the nature of the governmental concerns and the efficacy of the search policy.” State v. Brooks,

____ N.W.2d at ____.

The fact that one of the probation officers in Brooks wore a Sheriff’s uniform and carried a firearm did not render the entry for law enforcement purposes, where the true reason for the entry related to the defendant’s supervision.

In his dissent, Justice Appel expressed his discomfort with the special needs exception to the warrant requirement. He also stated his belief that the exclusionary rule should apply in probation revocation proceedings. State v. Brooks, ____ N.W.2d at ______(Appel, J., dissenting)

6. Consent -- Closed Container – Apparent Authority

State v. Jackson, 878 N.W.2d 422 (Iowa 2016) Although an individual with actual authority to consent to the search of a premises gives consent to search a room in the apartment, that consent does not extend to searches of closed containers in the room, unless the State establishes by a preponderance of the evidence that law enforcement is reasonable in believing that the consenting individual also has authority to consent to a search of the closed container.

– Under Illinois v. Rodriguez, 497 U.S. 177 (1990), law enforcement may conduct a warrantless search of a premises if it relies reasonably upon the consent of a person with the apparent authority to give consent, even if it is determined subsequently that the person has no actual authority. The Supreme

Court has not addressed the situation present in Jackson where law enforcement, pursuing suspects in an armed robbery, enter an apartment and are given permission by one of the occupants to search his room. During the search, law enforcement found a backpack in that room, and made no effort to question the occupants about its ownership. They searched the backpack, and found evidence linking another occupant to the robbery.

The basic question addressed by Justice Wiggins was whether the burden was on the State to establish that the consenting party had apparent authority to do so, or whether the burden was on -5-

the defendant to establish that the consenting party did not. Jurisdictions are split on this issue, and

the 4-3 majority selected the former.

In a concurring opinion, Justice Appel advocated dispensing under article 1, section 8 of the

Iowa Constitution with the notion of apparent authority, and holding that valid consent may be given

only by individuals with actual authority to do so. In the current climate of Iowa jurisprudence, he

suggested, Mr. Jackson’s attorney was ineffective in not advancing the independent state constitutional

claim.

7. Attenuation

Utah v. Strieff, _____ U.S. _____, 136 S.Ct. 2056, _____ L.Ed.2d _____ (2016) Where law enforcement stops a vehicle without reasonable suspicion, but commits no flagrant misconduct, and determines during the stop that the stopped individual is the subject of an outstanding arrest warrant, the discovery of the warrant attenuates the link between the illegality of stop and the evidence discovered, and the evidence is not excluded.

– Under Brown v. Illinois, 422 U.S. 590 (1975) the factors considered in applying the attenuation

doctrine are (1) the passage of time between the unconstitutional conduct and the discovery of the

evidence, (2) whether there were intervening circumstances, and (3) whether law enforcement engaged

in flagrant misconduct.

D. Fifth Amendment

1. Self-Incrimination – Miranda – Custody

State v. Schlitter, 881 N.W.2d 380 (Iowa 2016) Although the defendant was the subject of the investigation into the death of a child, the purpose of his meeting was law enforcement was their attempt to induce him to confess to the child’s death, officers questioned the defendant in an interview room with his back to the wall, there was substantial verbal pressure placed on the defendant during questioning to confess and to submit to a polygraph examination, the defendant was confronted with some evidence of his guilt, and there were some impediments placed upon his ability to leave during questioning, under the totality of circumstances a person in the position of the defendant would not reasonably believe that he was in custody, and therefore the defendant was not in custody for the purposes of Miranda, when he had cooperated voluntarily with law enforcement prior to the interview, came to the office voluntarily, and officers gave him the opportunity to implicate his girlfriend rather than himself.

– Chief Justice Cady employed the four-factor test from State v. Countryman, 572 N.W.2d 553, 558

(Iowa 1997) in reaching his conclusion: -6-

(1) the language used to summon the individual; (2) the purpose, place, and manner of interrogation; (3) the extent to which the defendant is confronted with evidence of her guilt; and (4) whether the defendant is free to leave the place of questioning.

Justice Appel dissented in part, with an exhaustive discussion of the principles involved in

the totality of circumstances analysis used in applying Miranda. Justice Appel’s opinion will be

helpful in future cases to establish that interviews were custodial in nature, therefore implicating

Miranda.

2. Double Jeopardy

a. Dual Sovereignty – Puerto Rico

Puerto Rico v. Sanchez Valle, _____ U.S. _____, 136 S.Ct. 1863, _____L.Ed.2d _____ (2016) Because the ultimate source of government and law in the Commonwealth of Puerto Rico is the United States federal government, Puerto Rico and the United States government are not dual sovereigns, and the double jeopardy clause precludes multiple prosecutions in the two jurisdictions for the same offense.

– The states are sovereigns separate from each other and from the United States government.

Indian tribes are as well. Under the dual sovereignty principle, Double Jeopardy does not

bar prosecutions in different states, or in a state court and federal court, for the same offense.

Heath v. Alabama, 474 U.S. 82 (1985). What constitutes different sovereigns is not a

function of how independently from each other the jurisdictions perform. The inquiry is

whether the powers of each derive from the same “ultimate source.” United States v.

Wheeler, 435 U.S. 313 (1978)

Writing for the majority, Justice Kagan traces the history of Puerto Rico as a United

States territory, and how Congress ultimately facilitated its path towards self-government.

Joined in dissent by Justice Sotomayor, Justice Breyer explains that Puerto Rico’s path

towards self-governance was little different from those of the states,1 and that Puerto Rico

1Other than the original thirteen, which pre-existed the federal government. The Court has found that each new state is “vested with all the legal characteristics and capabilities of the first 13.” Puerto Rico v. Sanchez Valle, 136 S.Ct. at 1871 (fn. 4). Coyle v. Smith, 221 U.S. 559 (1911). -7- certainly enjoys greater independence than Indian tribes. b. Issue Preclusion – Inconsistent Verdicts – Retrial After Appellate Reversal

Bravo Fernandez v. United States, _____ U.S. _____, 137 S.Ct. 352, _____ L.Ed.2d _____ (2016) Retrial is not barred by Double Jeopardy issue preclusion where defendant is convicted on one count and acquitted on another based on apparently identical facts, after the conviction is reversed on appeal for reasons unrelated to sufficiency of the evidence.

– The Court recognized the principle of issue preclusion in criminal cases in Ashe v.

Swenson, 397 U.S. 436 (1970), finding that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” When the jury reaches inconsistent verdicts on counts involving the same issue, however, the acquittal does not preclude prosecution in cases involving the same issue. United States v. Powell, 469 U.S. 57 (1984). Relitigation is precluded only if acquittal was a deliberate decision by the jury, and the burden is on the defendant to establish that it was. If a jury reaches different conclusions on the same question, it is not a rationale decision. There may be various reasons for its verdict besides a mere determination on the central issue of fact (i.e. compromise). In a criminal case, the jury’s reasoning cannot be explored, because the government has no right to appeal.

Where the jury acquits on one count, but is hung on the other, the acquittal does preclude retrial on the central issue, as there is no conflicting decision, simply a failure to decide. Yeager v. United States, 557 U.S. 110 (2009).

Bravo involved the situation where the jury renders inconsistent verdicts, but the guilty verdict on one count is reversed on appeal for procedural reasons. There is no issue preclusion under this circumstance, because there was still too much irrationality in the fact- finding process to conclude that the jury made a deliberate decision on the ultimate issue of fact. -8-

E. Sixth Amendment

1. Right to Counsel

a. Use of Uncounseled Conviction as a Predicate for Habitual Offender Status

United States v. Bryant, _____ U.S. _____, 136 S.Ct. 1954, _____ L.Ed.2d _____ (2016) Because the Indian Civil Rights Act of 1968 confers a right of counsel only upon defendants actually sentenced to terms exceeding one year, an uncounseled prior conviction for which the defendant received only a fine was a valid conviction and thus may be used as a predicate for an 18 U.S.C. § 117(a) conviction of domestic assault in Indian Country by a Habitual Offender.

– Because the prior conviction did not result in imprisonment, it would be valid for use as

a predicate in an habitual offender prosecution. Nichols v. United States, 511 U.S. 738

(1994).

b. Attachment of Right – Implied Consent Chemical Test

State v. Senn, 882 N.W.2d 1 (Iowa 2016) Defendant’s right to counsel under Iowa Const. art. I, sec. 10, was not violated by the presence of law enforcement in the room while the defendant spoke to counsel over the telephone about whether to submit to chemical testing following the defendant’s arrest for operating while intoxicated.

– Iowa Code § 804.20 permits the defendant to consult confidentially with an attorney at the

location in which the defendant is being held in custody. It does not provide that defendant

may consult privately with counsel during a telephone call from the jail. Mr. Senn was

unable to find an attorney able to make a personal trip to the jail in time to respond to the

implied consent request for a chemical test. He was able to speak to an attorney on the

phone, but law enforcement was present in the room and could hear the defendant’s side of

the conversation.

In cases culminating in the plurality opinion in Kirby v. Illinois, 406 U.S. 682

(1971) the Sixth Amendment right to counsel has been interpreted to attach only at the

initiation of judicial criminal proceedings by indictment, information or complaint, etc. The

question in Senn was whether the article 1, section 10 right to counsel applies to stages of the

trial preceding the formal charge. The text of the Iowa provision offers some support, as it -9- applies not only in criminal prosecutions, but also “in cases involving the life, or liberty of an individual.”

Does this broaden the reach of the right to counsel in Iowa, to the extent that counsel was required at a pre-charging request for a chemical test? The result in Senn was that it didn’t. But Senn was a plurality opinion. Led by Justice Waterman, three justices found that there is no right to counsel under the Iowa Constitution during implied consent testing. Three justices, led by Justice Appel and, to a lesser extent, Justice Wiggins, found that an implied consent test is a stage of trial at which there is a right to counsel.

The swing vote was Chief Justice Cady, who concurred in the result only. Assuming that the right to counsel had attached for Mr. Senn, Mr. Senn did not establish, in Justice

Cady’s mind, that it was violated by making him speak to counsel over the phone in the presence of law enforcement. Applying the principle of constitutional avoidance, Chief

Justice Cady resolved the case without addressing the constitutional challenge to § 804.20.

The time will come when it will be necessary to address the constitutional challenge.

It appears that Chief Justice Cady will line up with the Senn dissenters. When that day comes, counsel may attach for defendants in Iowa during implied consent chemical test requests, pre-charge lineups and pre-charge plea negotiations. The defense bar should keep an eye out for opportunities to raise this question. c. Counsel During Questioning – Questioning by Jailhouse Informants

State v. Marshall, 882 N.W.2d 68 (Iowa 2016) Introduction of the testimony of the defendant’s cellmate concerning the defendant’s statements about his participation in the charged offense violated the defendant’s right to counsel, where the informant had a proffer agreement with the government pursuant to which he had previously cooperated against two other targets, where a police investigator “may have” asked the informant about the defendant, where the informant’s codefendant was aware that police were investigating the defendant and probably passed that information on to the informant, and thus the informant was an agent for the state, and where the informant deliberately elicited information about the offense by helping the defendant prepare a written account of the offense, telling the defendant it was in his interest to tell his side of the story.

--The primary inquiry in determining whether a defendant’s right to counsel has been violated -10- by the use of jailhouse informants, under Massiah v. United States, 377 U.S. 201 (1964),

United States v. Henry, 447 U.S. 264 (1980), and their progeny is whether the informant (1) was an agent of the government, and (2) deliberately elicited information from the defendant.

The defendant has the burden of proving that these conditions exist but, in view of the way in which the majority applied them in Marshall, the bar is pretty low. The finding of an agency relationship was based upon a “maybe” and a “probably,” while the deliberate elicitation amounted to the defendant approaching the informant to enlist his assistance in telling his side of the story to attempt to establish his guilt of a lesser charge.

As always, Justice Appel’s opinion contains a wealth of background on the issue, including an extensive discussion of numerous factors that might give rise to a finding of an agency relationship. d. Counsel of Choice – Freezing Defendant’s Assets

Luis v. United States, ______U.S. _____, 136 S.Ct. 1083, _____ L.Ed.2d _____ (2016) The Sixth Amendment right to counsel is violated by the pretrial freezing of defendant’s untainted assets that may be subject to restitution following conviction, where the freeze deprives the defendant of assets necessary to hire counsel of his or her choice.

– The government is entitled under 18 U.S.C. § 1345, in certain health care and banking fraud prosecutions, to freeze (1) property obtained through the offense, (2) property traceable to the offense, and (3) other property of equivalent value. The Court has approved freezing assets in the first two categories, in United States v. Monsanto, 491 U.S. 600 (1989), and other cases, as not violative of the Sixth Amendment. In Justice Breyer’s plurality opinion, and Justice Thomas’ concurrence, the Court declined to extend these holdings to the third category of assets.

As might be expected, the opinions in Luis are rife with body slams on public defenders and appointed counsel who obviously provide a species of representation well below that of the attorneys Luis wished to hire. -11-

e. Ineffective Assistance – Breach of Duty

State v. Harris, _____ N.W.2d _____ (Iowa 2017) Especially where evidence of movement as an element of going armed with intent was relatively weak, counsel was ineffective in failing to object to a marshaling instruction on the offense that did not contain the element of going.

– The Court did reject Mr. Harris’ sufficiency of the evidence claim, finding that there was

no evidence to establish that the defendant acquired the weapon at the scene of the assault

and that he did not carry the weapon to the scene from another location.

State v. Schlitter, 881 N.W.2d 380 (Iowa 2016) Where defendant is charged with child endangerment resulting in death, and the jury is instructed that there are four possible alternative ways in which the offense may be committed, and the jury finds the defendant guilty via a general verdict, counsel is ineffective in failing to make what would be a meritorious motion for judgment of acquittal arguing that one alternative is unsupported by sufficient evidence.

State v. Ary, 877 N.W.2d 686 (Iowa 2016) Trial counsel breaches an essential duty to the defendant in filing a notice of depositions and request for extended discovery on the morning after the expiration of a deadline set by the district court, at which time the court indicated there would be no further extensions, without offering cause for the delay or even acknowledging missing the deadline.

– Because the Court could not determine if Ary was prejudiced by counsel’s breach, the issue

was preserved for postconviction relief.

2. Right to Jury Trial – Right to Impartial Jury

a. Batson Claim

Foster v. Chatman, _____ U.S. _____, 136 S.Ct. 1737, _____ L.Ed.2d _____ (2016) Notwithstanding the prosecution’s litany of ostensive race-neutral reasons for striking all of the black jurors on the panel, the state court determination that the strikes did not show purposeful discrimination was clearly erroneous where all of the black jurors on the panel were on a list of “definite NO’s”, where the names of all black jurors where highlighted in green and the letter B appeared next to each, and where the characteristics that prosecutors listed as reasons for striking the black jurors applied equally to white jurors who were not stricken. -12-

b. Right to Question Jurors About Deliberations – Racial Discrimination

Pena Rodriguez v. Colorado, _____ U.S. _____, _____ S.Ct. _____, _____ L.Ed.2d _____ (2017) There is, under the Sixth Amendment, an exception to the rule that juror testimony about what occurred during deliberations may not be used to impeach the jury’s verdict where a threshold showing is made that one or more jurors made statements exhibiting overt racial bias, casting doubt upon the fairness and impartiatlity of proceedings and that racial bias was a factor in the vote of that juror or jurors.

– Under Colorado Rule of Evidence 606(b), and those of most other jurisdictions, the only

exceptions to the no-impeachment rule are (1) whether there was improper extraneous

information presented during deliberation, (2) whether the jurors were subject to any outside

influence, and (3) if there was a mistake in the form of verdict. Because of the unique nature

of racial bias, Justice Kennedy found in the Court’s 5-3 decision, a constitutionally-mandated

exception also exists. Writing for himself, the Chief Justice and Justice Thomas, Justice

Alito likens jury deliberation to other privileged communications. Conversations with an

attorney, a doctor or a spouse may include information necessary to present a defense, but

they are not admissible in evidence.

3. Speedy Trial – Sentencing

Betterman v. Montana, ______U.S. _____, 136 S.Ct. 1609, _____ L.Ed.2d _____ (2016) The Speedy Trial guarantee of the Sixth Amendment applies to the period between arrest and trial, and does not guarantee a speedy sentencing hearing.

– Once the defendant pleads guilty or is convicted at trial, the presumption of innocence no longer applies. The defendant usually is receiving credit on his or her sentence during this time. And, while speedy sentencing is not guaranteed under the sixth amendment, it may be protected statutorily.

Justice Sotomayor suggests in a concurrence that a test may be constructed on due process grounds similar to the due process speedy trial test articulated in Barker v. Wingo, 407 U.S. 514 (1972). -13-

F. Eighth Amendment

1. Mandatory Sentences for Juvenile Offenders

a. Juvenile Sentences of Life Without Parole

State v. Sweet, 879 N.W.2d 811 (Iowa 2016) Under article I, sec. 17 of the Iowa Constitution, imposition of a sentence of life without the possibility of parole for a defendant who committed murder before turning 18 is cruel and unusual punishment.

– Sweet is perhaps the final, or at least the latest, development in the Iowa Supreme Court’s

interpretation of Miller v. Alabama, 132 S.Ct. 2455 (2012). Miller precludes a statutory

scheme that makes life without parole mandatory in cases involving juveniles. The

sentencing court must have individual discretion, and a sentence of life without parole should

be reserved for the rare cases in which the defendant is beyond rehabilitation. With the

possible exception of Massachusetts, Iowa becomes the first jurisdiction to apply the Miller

analysis as a matter of state constitutional law to find that life without parole may never be

imposed upon a juvenile defendant. Scientific research has determined that the adult

personality is not fully formed until a person is 25. Justice Appel’s primary line of reasoning

is that, if even scientists are unable to determine if a particular 18-year-old is capable of

rehabilitation, a sentencing judge certainly is not in a position to make that determination.

Chief Justice Cady offers an interesting alternative that might be considered by the

legislature in the future. He proposes that the defendant be sentenced to life without parole,

but that there be a judicial reconsideration mechanism at some point after the defendant

reaches full adulthood.

b. Miller v. Alabama – Retroactive Effect

Montgomery v. Louisiana, _____ U.S. _____, 136 S.Ct. 718, _____ L.Ed.2d _____ (2016) The decision of the United States Supreme Court In Miller v. Alabama, 132 S.Ct. 2455 (2012) that the Eighth Amendment proscribes mandatory sentences of life without parole for defendants convicted of crimes committed as juveniles, announced a new substantive rule of constitutional law, and must be given retroactive application by the states. -14-

2. Death Penalty Cases – Victim Impact Evidence

Bosse v. Oklahoma, _____ U.S. _____, 137 S.Ct. 1, _____ L.Ed.2d _____ (2016) While, in Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court overruled implicitly the holding in Booth v. Maryland, 482 U.S. 496 (1987) that it is improper to introduce at a capital sentencing hearing victim testimony concerning the personal characteristics of the victim and the impact of the loss on the victim’s family, Payne did not overrule portions of Booth that proscribed victim impact testimony about the nature of the offense, the personal characteristics of the defendant and the victim’s opinion as what the appropriate sentence should be, and introduction of evidence of this nature remains barred under Booth.

– The Oklahoma courts found that Payne overruled Booth in its entirety. Justice Per Curiam noted

that only the Supreme Court can overrule one of its precedents.

3. Excessive Fines – $150,000 Mandatory Restitution for Offenses Involving Death

State v. Richardson, _____ N.W.2d _____ (Iowa 2017) An argument that mandatory restitution payments are excessive is evaluated under the excessive fines clauses of the Eighth Amendment and Iowa Const. art. I, § 17, and not under the cruel and unusual punishment clauses.

– The two provisions are not interchangeable, Justice Mansfield explains.

State v. Richardson, _____ N.W.2d _____ (Iowa 2017) The mandatory $150,000 minimum restitution requirement under Iowa Code § 910.3B in cases resulting in death is not grossly disproportionate to the offense2 so , unlike mandatory sentences of incarceration, so it does not constitute an excessive fine under Iowa Const,, art. I, sec. 17, in cases involving offenders who were under the age of 18 at the time of their offenses.

– Richardson is a 4-3 decisions, with Chief Justice Cady being the defector from the majority that has

expanded, in a number of decisions under the Iowa constitution, upon the Supreme Court decision

in Miller v. Alabama, 132 S.Ct. 2455 (2012).

The Court also denied Ms. Richardson’s as applied challenge. Notwithstanding all of the

equities she presented relating to her personal history and characteristics, the restitution award was not

excessive in view of the gravity of the offense. Justice Mansfield noted that the Court might review

a juvenile defendant’s restitution payment plan, if it is so excessive it interferes with the rehabilitation

process.

2State v. Izzolena, 609 N.W.2d 541 (Iowa 2000). -15-

G. Fourteenth Amendment -- Due Process

1. Vagueness – United States Sentencing Guidelines

Beckles v. United States, _____ U.S. _____, _____ S.Ct. _____, _____ L.Ed.2d _____ (2017) The due process principle of vagueness applies to statutes that limit the Court’s discretion by establishing a statutory sentencing range, but not to sentencing guidelines that merely guide the Court in exercising its discretion.

– In Johnson v. United States, _____ U.S. _____, 135 S.Ct. 2551, 192 L.Ed.2d 5691 (2017) the Court

invalidated, on vagueness grounds, one of three alternative definitions of what constitutes a “prior

felony crime of violence” precursor to sentencing a defendant as an Armed Career Criminal in federal

court. A defendant charged with a federal firearms offense faces a statutory range of sentence of up

to ten years. An armed career criminal faces a fifteen year minimum sentence and a maximum of life

imprisonment. Several United States Sentencing Guidelines employ nearly identical definitions

giving rise to other enhancement provisions. The most prominent, and the one at play in Beckles, is

career offender status, which subjects defendants in prosecutions for controlled substance offenses or

felony crimes of violence to dramatically increased sentences where the defendant was previously

convicted of at least two controlled substance offenses or crimes of violence.

Johnson was applied retroactively to reduce sentences of armed career criminals still serving

sentences of fifteen years or more. Career offenders, on the other hand, will see no such relief.

2. Admission of Unreliable Evidence

More v. State, 880 N.W.2d 487 (Iowa 2016) While Compositional Bullet Lead Analysis (CBLA) evidence, used at defendant’s 1984 murder trial, subsequently was discredited by scientific research, and even by the Federal Bureau of Investigation itself, the evidence was not so inherently unreliable that even permitting its consideration by the jury rendered his trial fundamentally unfair.`` -16-

3. Brady v. Maryland – Failure to Turn over Exculpatory Evidence

Wearry v. Cain, _____ U.S. _____, 136 S.Ct. 1002, _____ L.Ed.2d _____ (2016) Defendant’s Due Process right under Brady v. Maryland, 378 U.S. 83 (1963) to pre-trial disclosure of exculpatory evidence is violated in a capital murder prosecution where the government fails to disclose (1) that the primary informant against the defendant had mentioned to friends that he planned to “make sure [the defendant] gets the needle cause he jacked over me,” (2) that another informant had sought a cooperation agreement with the prosecution despite his protestations that he was gaining nothing by testifying against the defendant, and (3) medical records that would establish that one of the individuals alleged by the primary informant to have played an active role in the murder was physically unable to do so and, where the failure to disclose these matters undermined confidence in the jury verdict, defendant is entitled to a new trial.

– This case came to the Court on a writ of certiorari, and was decided by Justice Per Curiam without briefing or argument. This was Justice Alito’s major complaint in dissent – that cases like Mr.

Wearry’s are often more complex than they appear in the certiorari petition, and should have been brought up through habeas to allow for more complete development in the lower federal courts.

Doing it that way, in Justice Alito’s view, “leads to better results, and it gives the losing side the satisfaction of knowing that at least its arguments have been heard.”

See, I’m not like that. It hurts me more to lose when I’ve had the opportunity to make what

I believe is an irrefutable argument. If I don’t have that opportunity, I can rationalize in the back of my mind that “they don’t know anything, because they didn’t have the benefit of my analysis.”

4. Judicial Recusal

Williams v. Pennsylvania, _____ U.S. _____, 136 S.Ct. 1899, _____ L.Ed.2d _____ (2016) The chief justice of the state supreme court who, as the lead state district attorney, had approved seeking the death penalty in a murder prosecution, had made a critical decision in that prosecution, and Due Process thus requires that the justice recuse himself from participating in consideration of a postconviction challenge to the conviction.

– This sweetheart of a guy who managed to slither from his role as D.A. to the helm of the state supreme court ran for his judicial seat bragging about sending 45 defendants to death row. When the lower court stayed Mr. Williams’ execution on a Brady v. Maryland, 373 U.S 83 (1963) claim, he complained in a concurrence that the lower court “lost sight of its role as a neutral judicial officer” and stayed execution “for no valid reason.” He then turned his attention to counsel who represented Mr.

Williams in postconviction: -17-

Chief Justice Castille denounced what he perceived as the “obstructionist anti-death penalty agenda” of Williams’s attorneys from the Federal Community Defender Office. . . PRCA courts “throughout Pennsylvania need to be vigilant and circumspect when it comes to the activities of this particular advocacy group,” he wrote, lest Defender Office lawyers turn postconviction proceedings “into a circus where [they] are the ringmasters, with their parrots and puppets as a sideshow.”

Because it is virtually impossible to ascertain what impact the one jurist’s bias had upon

others on the panel on which he sat,3 a violation of this nature is not amenable to harmless error

analysis. The failure of an appellate judge to recuse him- or herself in a proceeding in which he or she

was involved previously as an attorney is structural error.

5. Death Penalty Cases

Lynch v. Arizona, _____ U.S. _____, 136 S.Ct. 1818, _____ L.Ed.2d _____ (2016) In a capital case, where the defendant’s future dangerousness is in issue and the sentencing alternatives are death or life imprisonment, the defendant has the Due Process right to have the jury instructed that, if given a life sentence, he would be ineligible for parole,.

– In Lynch, Justice Per Curiam essentially affirms what the Court held in Simmons v. South Carolina,

512 U.S. 154 (1994). Not a particular garden spot for criminal defendants, Arizona believed that

Simmons doesn’t apply there, because there is the opportunity for life without possibility of release

for 25 years. But, since Arizona has done away with parole, the only mechanism for release currently

is executive clemency.

As is often the case, Justice Thomas responds to the majority’s legal with a rundown of the

very gruesome facts of the case, basically arguing, “You want to talk about Due Process – look at

this!!” Justice Alito joins the dissent.

3In this case, when the motion to recuse was filed, the chief justice referred it to himself and denied it. -18- II. Substantive Offenses

A. Assaults – Domestic Assault in Indian Country by a Habitual Offender – Prior Convictions – Uncounseled Convictions

United States v. Bryant, _____ U.S. _____, 136 S.Ct. 1954, _____ L.Ed.2d _____ (2016) Because Indian Civil Rights Act of 1968 confers a right of counsel only upon defendants actually sentenced to terms exceeding one year, a prior uncounseled conviction for which the defendant received only a fine was a valid conviction and thus may be used as a predicate for an 18 U.S.C. § 117(a) conviction of domestic assault in Indian Country by a Habitual Offender.

– Because the prior conviction did not result in imprisonment, it would be valid for use as a predicate in an

habitual offender prosecution. Nichols v. United States, 511 U.S. 738 (1994).

B. Bank Fraud – Sufficiency

Shaw v. United States, _____ U.S. _____, 137 S.Ct. 462, _____ L.Ed.2d _____ (2016) Because a bank has a property interest in money on deposit, the defendant who conducts a scheme to obtain the funds of a bank customer defrauds the financial institution under 18 U.S.C. §1344(1).

– Mr. Shaw advanced various creative arguments for why his conduct did not amount to bank fraud. Each was

rejected by Justice Breyer.

C. Bribery – Official Act

McDonnell v. United States, ______U.S. _____, 136 S.Ct. 2355, _____ L.Ed.2d _____ (2016) State governor’s acts of arranging meetings, hosting events, and contacting other state officials relating to a product sold by a friend of the governor’s who had provided the governor and his spouse with $175,000 in loans, gifts and other benefits are not “official acts,” subjecting the government to prosecution for bribery, unless they involved a decision or action on a “question, matter, cause, suit, proceeding or controversy.”

D. Extortion – Federal Hobbs Act Extortion – Taking Money from Conspirator

Ocasio v. United States, ______U.S. _____, 136 S.Ct. 1423, _____ L.Ed.2d _____ (2016) Commission of a Hobbs Act extortion under 18 U.S.C. §§ 1951 and 371, which requires that the defendant conspire to obtain money from another under color of official right, may occur where the defendant obtains money from another conspirator, and does not require an unwilling participant.

– Mr. Ocasio was a Baltimore Police Officer who was involved in a scheme involving a local auto repair

company. Officers would refer accident victims to the company in exchange for kickbacks. The repair shop

owners were not able to commit extortion, but they could be part of the officers’ conspiracy to obtain the

kickbacks. -19-

The concept that Hobbs Act extortion may include what is considered bribery as well as what is considered extortion arose in Evans v. United States, 504 U.S. 255 (1992).

E. Insider Trading – Sufficiency – Gifts to Relatives

Salman v. United States, _____ U.S. _____, 137 S.Ct. 420, _____ L.Ed.2d _____ (2016) Under Dirks v. SEC, 463 U.S. 646 (1983) a tipper receives a personal benefit when he or she “makes a gift of confidential information to a trading relative or friend,” and when a subsequent tippee trades on confidential information knowing it was originally received as a gift from the tipper that person commits insider trading.

F. Motor Vehicle Offenses – OWI – Penalties –- Restitution for “Emergency Response”

State v. Iowa District Court for Scott County, 889 N.W.2d 467 (Iowa 2017) The provision of Iowa Code § 321J.2(13)(b) that requires the defendant in an OWI prosecution to pay restitution “for the costs of the emergency response” applies when there is an accident of some other urgent event, but does not apply to the mere stop of the defendant by law enforcement, which is an investigative event.

G. Robbery – Federal Hobbs Act Robberies – Federal Jurisdiction

Taylor v. United States, ______U.S. _____, 136 S.Ct. 2074, _____ L.Ed.2d _____ (2016) Because, under Gonzales v. Raich, 545 U.S. 1 (2005) Congress possesses the authority under the Commerce Clause to regulate the national market for marijuana, even in cases involving purely intrastate drug transactions, Congress also has the authority to regulate, under the Hobbs Act, 18 U.S.C. § 1951(a), robberies of drug operations, and it is not necessary to prove that the robbery itself has an effect upon interstate commerce.

– Taylor is limited to Hobbs Act robberies of drug operations, and does not necessarily apply to robberies of other enterprises.

H. Sexual Offenses

1. Federal – Child Pornography – Sentencing -- Enhancement for Prior Convictions

Lockhart v. United States, _____ U.S. _____, 136 S.Ct. 958, _____ L.Ed.2d _____ (2016) Under the provision of 18 U.S.C. § 2252(b)(2) for a ten-year mandatory minimum in cases involving child pornography where the defendant has a prior conviction of a crime involving aggravated sexual abuse, sexual abuse and abusive sexual conduct involving a minor or ward, the defendant is subject to the minimum if he or she has a prior conviction of aggravated sexual abuse or sexual abuse of an adult, and the limitation to convictions involving a minor or a ward applies only to abusive sexual conduct.

– In reaching this conclusion, Justice Sotomayor considered a variety of factors, including legislative

history and Congressional intent. Primarily, however, she relied upon a principle of statutory

construction called the “rule of the last antecedent.” If the statute contains a list of antecedents -20- followed by a qualifier, the qualifier generally modifies the last antecedent on the list, although it is not mandatory. Justice Kagan responded with a number of examples, including very recent decisions of the Court, in which the rule has not been adhered to.

2. Sex Offender Treatment Program

a. Non-Sexual Offenses

Iowa v. Iowa District Court for Jones County, 888 N.W.2d 665 (Iowa 2016) The Iowa Department of Corrections possesses the authority to require an inmate to participate in the Sex Offender Treatment Program (SOTP), in a case in which the defendant is convicted of a non-sexual offense, but where the offense has a sexual component, after the defendant has been provided basic notice and ability to respond.

– A due process hearing is not required where the defendant is convicted of a sex offense,

because the procedures leading to conviction satisfies due process requirements. The

standard of proof is lower (some evidence) and rules of evidence do not necessarily apply.

The SOTP assignment may be based upon the statement of the victim appearing in the

minutes of testimony.

b. Review

Pettit v. Iowa Department of Corrections, _____ N.W.2d _____ (Iowa 2017)] Because failure to submit to an Iowa Department of Corrections sex offender treatment program (SOTP) may result in the loss of good time and because, under Iowa Code § 903A.4, an inmate disciplinary hearing is not a contested case subject to the administrative procedures of Iowa Code Chapter 17A, SOTP classification is not reviewable under Chapter 17A, and the inmate must contest classification under the postconviction relief provision of Iowa Code § 822.2(f).

3. Sex Offender Registration – Notification of Jurisdiction Offender is Leaving

Nichols v. United States, _____ U.S. _____, 136 S.Ct. 1113, _____ L.Ed.2d _____ (2016) Under the plain language of 18 U.S.C. § 2250(a), the federal Sex Offender Registration and Notification Act (SORNA), a registered sex offender is not required to notify a jurisdiction the person is leaving, so the registered sex offender who travels to a jurisdiction that does not have a registration requirement without giving notification does not violate SORNA.

– Under SORNA, the offender must register in all jurisdictions in which he or she resides, is employed, or attends school. When the offender moves, etc., he or she is required to notify one of the

“involved jurisdictions.” That jurisdiction notifies the other involved jurisdictions. The jurisdiction -21-

the offender is coming from is not an involved jurisdiction. A subsequent statute, codified as 18

U.S.C. § 2250(b), does require such notification.

I. Weapons – Federal Possession of a Firearm by Person Previously Convicted of Misdemeanor Crime of Domestic Violence, 18 U.S.C. § 922(g)(9) – Prior Offense – “Use of Physical Force”

Voisine v. United States, _____ U.S. _____, 136 S.Ct. 2272, _____ L.Ed.2d _____ (2016) While a prior misdemeanor crime of domestic violence making it illegal to possess a firearm under 18 U.S.C. § 922(g)(9) must involve the “use. . .of physical force,” 18 U.S.C. § 921(a)(33)(A), the physical force need not be intentional, and may be reckless.

III. Pre-trial Issues

A. Rules of Construction

1. General

State v. Iowa District Court for Scott County, 889 N.W.2d 467 (Iowa 2017) The provision of Iowa Code § 321J.2(13)(b) that requires the defendant in an OWI prosecution to pay restitution “for the costs of the emergency response” applies when there is an accident or some other urgent event, but does not apply to the mere stop of the defendant by law enforcement, which is an investigative event.

– Justice Mansfield’s opinion in this case explores a range of rules of construction. He agreed the

statute was ambiguous when it came to defining “emergency response.” The state relied upon the

doctrine of ejusdem gereris, in which specific words in a phrase control the general ones. The

defendant relied upon noscitur a sociis, under which particular words are defined by words

surrounding them. It is important, Justice Mansfield stressed, to examine the object of the statue.

Because the statute is ambiguous, the rule of lenity might apply. Statutes should be considered as a

whole, rather than interpreting the meaning of separate phrases. Courts should strive to achieve a

practical construction of statutory language.

A controlling factor was the legislature’s use in the statute of the term “emergency,” which

would be superfluous if the state’s interpretation was adopted. -22-

2. Rule of the Last Antecedent

Lockhart v. United States, _____ U.S. _____, 136 S.Ct. 958, _____ L.Ed.2d _____ (2016) If statute contains a list of antecedents followed by a qualifier, the qualifier generally modifies the last antecedent on the list, although it is not mandatory that it be interpreted that way.

– 18 U.S.C. § 2252(b)(2) provides for a ten-year mandatory minimum in cases involving child

pornography where the defendant has a prior conviction of a crime involving aggravated sexual abuse,

sexual abuse or abusive sexual conduct involving a minor or ward,. The defendant in Lockhart had

a prior conviction of sexual abuse in which his victim was an adult. He argued that the qualifier

“involving a minor or ward” applied to all three of the classes of predicate offenses, and thus he was

not subject to the minimum. The qualifier applies only to abusive sexual conduct., Justice Sotomayor

found, so his prior conviction gave rise to the minimum. Justice Kagan responded with a number of

examples, including very recent decisions of the Court, in which the rule has not been adhered to.

3. Severability Doctrine

Breeden v. Iowa Department of Corrections, 887 N.W.2d 602 (Iowa 2016) Where a portion of a statute is found to be invalid, remaining portions of the statute may be severed and continue to have validity if the remaining statute can have effect without the stricken portion and where to do so would not confound legislative intent.

B. Jurisdiction – Territorial Jurisdiction

State v. Rimmer, 877 N.W.2d 652 (Iowa 2016) Where defendants commit acts of insurance fraud in Wisconsin and Illinois, and file claims with a Wisconsin insurance company, there is territorial jurisdiction in Iowa where defendants reported the claim over the telephone to an adjustor located in Iowa, despite the fact that defendants were not aware of the adjustor’s location.

– Justice Waterman’s opinion in Rimmer is a textbook review of the principles of territorial jurisdiction under

Iowa law. The test is not the same as that governing personal jurisdiction in civil cases. It is not a minimum contacts test. Personal jurisdiction arises when the defendant is in the jurisdiction, even if the defendant is brought in under government authority. A criminal case can be prosecuted in any jurisdiction in which one of the elements occurred, satisfying the vicinage clause of the Sixth Amendment. Due process is not violated by punishing the defendant for a crime in Iowa, when he did not know that he was committing a crime in Iowa, as long as he knows he was doing so in some state. Prosecution of such defendants in Iowa was also consistent -23- with Iowa Code § 803.1, governing state criminal jurisdiction.

C. Appointment of Counsel – Withdrawal – Taxing Costs to the State Public Defender

State Public Defender v. Iowa District Court, 886 N.W.2d 595 (Iowa 2016) The district court exceeds its authority in taxing court costs and travel costs of the parties to the State Public Defender when the assistant public defender appointed to represent a juvenile in a delinquency proceeding promptly withdraws on the ground of a conflict of interest with other clients.

– I don’t know anything about District Associate Judge Stephen A. Owen, but I would be willing to bet that this case is the tip of the iceberg, and that relations between the court and the public defender in Story County are strained, to say the least. Or maybe it was just a bad day. But everything about the order taxing costs was wrong. For one thing, costs were taxed to the State Public Defender, who isn’t even a party to the delinquency action. Under the statute, Iowa Code § 232.141, coasts of juvenile proceedings are taxed to the county, not the parties. The public defender on the case did absolutely nothing wrong, and had moved to withdraw within two hours of the appointment. Nevertheless, Judge Owen castigated the public defender for not moving quickly to get new counsel appointed. But under Iowa Code § 13B.9(4)(a), it is the responsibility of the court, not the public defender, to appoint substitute counsel in the event of the conflict. And the public defender had provided the court with a list of potential substitutes at the time of withdrawal.

Hopefully, Judge Owen and the local public defender can bury the hatchet, and they can work together in a more productive manner in the future.

D. Motions and Rulings

1. Motions to Extend Discovery Deadlines

State v. Ary, 877 N.W.2d 686 (Iowa 2016) The district court does not abuse its discretion in denying a motion to take depositions and for expanded discovery where the court had previously extended deadlines to the previous day noting that there would be no further extensions, and the defendant offered no reason for missing the deadline, nor even acknowledged missing the extended deadline.

– Repeating language from State v. Gates, 306 N.W.2d 720, 726 (Iowa 1981), Justice Wiggins

cautions “that in exercising their discretionary authority over the administration of discovery matters,

‘courts must strike a careful balance between the interest in economizing discovery and the rights

afforded criminal defendants.’” -24-

2. Motion for Recusal of Judge

State v. Toles, 885 N.W.2d 407(Iowa 2016) Statements to the defendant by the district court at sentencing that the court is very familiar with the defendant’s name, both as a prosecutor and as a judge, and that the fact that the court knows the defendant’s middle name is not good for the defendant, does not alone demonstrate bias or prejudice against the defendant, and the court is not required to recuse itself.

3. Speedy Trial

State v. Taylor, 881 N.W.2d 72 (Iowa 2016) The state did not meet its burden of establishing good cause for a delay in trial beyond the 90-day speedy trial limit of Iowa R.Crim.P. 2.33(2) where the defendant was in custody at the Mitchellville Correctional Facility, which is within Iowa, and the state made no showing of due diligence in contacting her, and where the defendant engaged in plea negotiations with the state only after the 90- day period had run.

– The state attempted to argue that the motion to dismiss was untimely. Justice Appel responded that

the timeliness argument has prevailed where the motion was filed after a verdict was returned, State

v. Paulsen, 265 N.W.2d 581 (Iowa 1978), but never when it was advanced before trial.

E. Guilty Plea – Required Colloquy – Iowa R.Crim.P. 2.8(2)(b)(2) --Consequences of Plea

State v. Fisher, 877 N.W.2d 676 (Iowa 2016) A defendant entering a plea of guilty to a charge of possession of controlled substances must be informed that, as a consequence of his conviction, his driver’s license will be suspended for 180 days.

– In a per curiam decision in State v. Carney, 584 N.W.2d 907 (Iowa 1998), the Court ruled previously that the license suspension was a collateral consequence of a conviction of OWI, and the court has no responsibility to advise the defendant of that consequence in taking an OWI plea. A conviction of drug possession is a different circumstance. Suspension of the license of a driver convicted of drunk driving serves a public safety goal. It is not necessarily punitive. Taking the license of a drug possessor is, on the other hand, solely punitive.

State v. Fisher, 877 N.W.2d 676 (Iowa 2016) The imposition of a 35 percent criminal penalty surcharge, a drug-abuse resistance education surcharge of $10, and a $125 law enforcement initiative surcharge are part of the punishment following conviction of possession of controlled substance so, in taking a plea of guilty, the court is required to advise the defendant of these consequences. -25- IV. Trial Issues

A. Jury Selection

1. Improper Questioning

State v. Martin, 877 N.W.2d 859 (Iowa 2016) The trial court did not abuse its discretion in denying a mistrial when any prejudice from improper voir dire questioning by the prosecutor was effectively mitigated by limitations placed upon questioning and cautioning instructions to the jury.

– The district court, the Court of Appeals, and the Supreme Court agreed that the prosecutor in Martin

skated close to the line of impropriety at times during voir dire. Several questionable lines of

questioning were not objected to by the defense, so they were not considered by the Court. The

prosecutor gave jurors a “civics lesson” in which he explained, essentially, that since the county

attorney is elected by the voters he must be trustworthy to avoid losing his job.4 And there was a

suggestion that the jury would not be hearing certain evidence that would support the state’s case.

These were not objected to.

Defense counsel did object to the prosecutor’s vouching for a law enforcement witness as a

“good guy,” when questioning a juror who knew the officer. This was a valid effort to assess the

juror’s ability to be objective. The same was true for questions about the credibility of confidential

informants.

Justice Hecht was more troubled about hypothetical questions asking panelists to place

themselves in the shoes of drug dealers and to informants. As soon as defense counsel objected, the

district court halted the questioning and subsequently informed the jury that they should not consider

statements of lawyers as evidence. This was sufficient.

4Justice Hecht pointed out that, while the county attorney is elected, assistants are not. So the prosecutor’s representations were not entirely accurate. -26-

2. Motion to Disqualify the Jury

State v. Ary, 877 N.W.2d 686 (Iowa 2016) The district court’s denial of the defendant’s motion to disqualify the jury after a panelist spoke at length about his strong particular prejudices in cases such as the defendant’s was not reversible, where defense counsel had numerous opportunities to question panelists, as a group and in private, as to whether at least one of them was prejudiced by the panelist’s comments, and failed to do so.

B. Evidence

1. Sealed Records of Founded Adult Abuse Claims – Iowa Code 235B.9

State v. Olutunde, 878 N.W.2d 263 (Iowa 2016) Once the record of a final report of a founded complaint of adult abuse has, after the passage of ten years, been sealed under Iowa Code § 235B.9, the district court is not authorized to reopen the report during a new prosecution of the same defendant for adult abuse.

– The statute means what it says. The two circumstances under which the period before sealing may

be extended are (1) where good cause for extending the period is found before the records are sealed,

and (2) where the defendant commits a similar act of adult abuse before the record is sealed. Neither

of these were present here.

Justice Waterman left open the question of whether the contents of the sealed record may be

used to impeach the defendant if he subsequently claims to have never committed adult abuse.

2. Iowa R.Evid. 5.404(b) (Other Bad Acts) – Prior Assaults by Defendant

State v. Richards, 879 N.W.2d 140 (Iowa 2016) The defendant’s intent remains relevant where the defendant relies upon a theory of self-defense, so the district court does not abuse its discretion in a prosecution for domestic abuse causing injury in admitting evidence of prior domestic assaults by the defendant upon the same victim.

– There is a hefty jurisdictional split on this issue. Justice Hecht emphasized that the Richard ruling

is not a retreat from the Iowa Court’s understanding that Rule 5.404(b) is a rule of exclusion, not

inclusion.

State v. Richards, 879 N.W.2d 140 (Iowa 2016) The prejudice prong of Iowa R.Evid. 5.404(b) is the same as under Iowa R.Evid. 403, requiring the court to determine whether the danger of undue prejudice substantially outweighs its probative valuse.

– In cases such as State v. Barnes, 791 N.W.2d 817 (Iowa 2010) and State v. Duncan, 710 N.W.2d

34 (Iowa 2006), the inquiry has been whether the probative value of the evidence substantially -27-

outweighs its prejudice. Decisions such as Barnes and Duncan are overruled on this issue in Richards.

3. Expert Testimony – Iowa R. Evid. 5.703 – Comparative Bullet Lead Analysis – Reliability

More v. State, 880 N.W.2d 487 (Iowa 2016) Where the state relied heavily upon Compositional Bullet Lead Analysis (CBLA) evidence at defendant’s 1984 murder trial, the fact that such evidence subsequently was discredited by scientific research, and even by the Federal Bureau of Investigation itself, constituted non-cumulative newly discovered evidence that could not have been discovered through due diligence at the time of trial.

– Mr. More did not receive a new trial on this ground, however, as his conviction was supported by

other evidence and the new developments would not have resulted in a different verdict.

C. Motions

1. Mistrial – Trial Publicity

State v. Gathercole, 877 N.W.2d 421 (Iowa 2016) The trial court does not abuse its discretion in failing to grant mistrial or to order that jurors be polled when a local newspaper releases an article, at least online, that contains factual misstatements about the evidence, where the article did not raise serious concerns of prejudice because the misstated fact was not one disputed by the parties, where there the true facts were made known to the jury during trial, and where there is no reasonable possibility that the jury read the article.

– Under State v. Bigley, 202 N.W.2d 56 (Iowa 1972) the court must poll the jury about exposure to

a factually inaccurate news story where the story raises “serious questions of possible prejudice.” The

test is both a qualitative and quantitative one. The qualitative aspect refers simply to how closely

related the coverage is to the case, and to the defenses raised. The quantitative component involves

the likelihood that the material will reach the jury, and takes into account the admonitions given by

the court, the prominence of the report both within the publication and in the community, the

frequency with which it was reported, and the credibility of the publisher.

Justice Hecht urges courts to utilize one of two strongly-worded admonitions to the jury

published by the United States Judicial Conference Committee on Court Administration and Case

Management. -28-

2. Post-Trial Motions

a. Motion for New Trial – Weight of the Evidence – Proper Standing

State v. Ary, 877 N.W.2d 686 (Iowa 2016) Where the district court denies defendant’s motion for new trial stating, “I believe the evidence was sufficient for the jury to convict on all three counts that they rendered a verdict on. I think there was sufficient evidence in the record the State presented,” the Court employs the incorrect standard in considering a motion for new trial arguing the verdict was against the weight of the evidence.

b. Motions in Arrest of Judgment – Waiver – Sufficient Advice in Written Guilty Plea

State v. Fisher, 877 N.W.2d 676 (Iowa 2016) While, under State v. Meron, 675 N.W.2d 537 (Iowa 2004), it is not necessary for the court taking a plea to a serious misdemeanor to engage in the Iowa R. Crim.P. 2.8(2)(d) colloquy advising the defendant that challenges to a guilty plea must be made in a motion in arrest of judgment to preserve them for appeal, the written plea of guilty must comply substantially with that requirement, and where a written plea does not advise the defendant that failure to file a motion in arrest forecloses appeal, the failure to file a motion in arrest of judgement does not preclude the defendant from appealing his guilty plea.

– This case presents an interesting illustration of the current Supreme Court’s growing lack

of fondness for motions to withdraw as appellate counsel under Iowa R. App. P. 6.1005 on

the ground that an appeal is frivolous. The district court appointed counsel to represent Mr.

Fisher on appeal. Appellate counsel moved to withdraw under Rule 6.1005. The Supreme

Court denied the motion, requiring counsel to provide more detail concerning the plea and

sentencing. Appellate counsel filed a total of three Rule 6.1005 motions before the Supreme

Court removed that attorney and substituted Phil Mears. Phil lost the case in the Court of

Appeals, but was successful on further review.

D. Jury Deliberations – Use of Jury Testimony to Impeach Verdict

Pena Rodriguez v. Colorado, _____ U.S. _____, _____ S.Ct. _____, _____ L.Ed.2d _____ (2017) There is, under the Sixth Amendment, an exception to the rule that juror testimony about what occurred during deliberations may not be used to impeach the jury’s verdict where a threshold showing is made that one or more jurors made statements exhibiting overt racial bias, casting doubt upon the fairness and impartiatlity of proceedings and that racial bias was a factor in the vote of that juror or jurors. -29- V. Sentencing

A Particular Sentences

1. Enhancements for Prior Convictions -- 18 U.S.C. § 924(e) (Armed Career Criminal Act) – Prior Violent Felony

Mathis v. United States, _____ U.S. _____, 136 S.Ct. 2243, _____ L.Ed.2d _____ (2016) Where there is a generic formulation of an enumerated prior crime of violence giving rise to enhancement under the Armed Career Criminal Act (18 U.S.C. § 924(e), the Taylor v. United States, 495 U.S. 575 (1990) categorical approach of comparing the elements of the relevant alternative of the crime under the state statute with the elements of the enumerated offense is not employed where the state statute articulates various means of committing the offense, some of which match the generic offense and some of which do not.

– This case comes out of the Southern District of Iowa, and involves the Iowa burglary statute as a

prior violent felony for ACCA purposes. To commit a generic burglary, one must enter a home

illegally with the intent to commit a crime. A defendant in Iowa can be guilty of burglary by entering

a home illegally, but he or she me also commit burglary by entering an automobile or a boat. If Iowa

law required the jury to find unanimously that it was a home the defendant burgled, then the

categorical approach would be used in a subsequent federal sentencing to determine whether the

particular defendant committed the elements of a house burglary. If so, that burglary would be an

ACCA predicate. Iowa law does not require a unanimous finding, however. A defendant may be

convicted of burglary where jurors are split on whether the premise was a house, a car or a boat. Even

where, as in Mathis it can be determined from court records that the prior burglary was of a house, the

fact that it was a house was a means of committing the offense, not an element.

In Descamps v. United States, 133 S.Ct. 2276 (2013), the Court held that if there are

alternatives under state law, some of which match the elements of the generic offense and some of

which do not, but the elements are not divisible in a way that would allow a determination that the

prior conviction was for the generic offense, it is not proper to utilize the categorical analysis and,

thus, a conviction under the state statute may not be used as an ACCA predicate. The Mathis majority

reached the same conclusion with respect to state offenses with various means to commit which do not -30- have to be found unanimously by the jury.

2. Good Time Accumulation – Removal of Minimum

Breeden v. Iowa Department of Corrections, 887 N.W.2d 602 (Iowa 2016) The slower (18/85 of a day for each day incarcerated) rate of accumulation of good time credit under Iowa Code § 903A.2(1)(b) for sentences subject to an Iowa Code § 902.12 (2015) mandatory minimum sentence no longer applies when the mandatory minimum is determined to be unconstitutional, and affected defendants are entitled to the 1 2/10 of a day credit for each day served prescribed in Iowa Code § 903A.2(1)(a).

– The district court applied the severability doctrine of statutory interpretation and found that the slower accumulation rate still applied, although the defendants were no longer subject to the 70 percent minimum sentence. Justice Waterman determined that the raison d’etre for the slower accumulation rate was connected to the statutory minimum. The legislature would not have intended the slower rate to apply where there is no minimum.

3. Bond Seizure to Pay Costs

State v. Letscher, 888 N.W.2d 880 (Iowa 2016) There is no statutory authority in Iowa for the district court to forfeit appearance bond at sentencing, and to use it to pay financial obligations.

– In several jurisdictions there is such authority, and authority existed under the Iowa Code prior to the 1977 rewrite. The bond that Mr. Letscher signed permitted costs, etc., to be deducted from it, but did not agree to forfeiture during sentencing.

4. Restitution

a. Mandatory $150,000 Restitution in Homicide Cases – Juveniles

State v. Richardson, _____ N.W.2d _____ (Iowa 2017) Throughout the Iowa Code, restitution is not treated as part of the defendant’s sentence, and thus the provision of Iowa Code § 901.5(14) that permits the court to suspend or defer an otherwise mandatory sentence where the defendant was under the age of eighteen when the offense was committed, does not apply to the mandatory $150,000 restitution provision of Iowa Code § 910.3B. -31-

b. Reduction for Insurance Payment

State v. DuBois, 888 N.W. 2d 52 (Iowa 2016) While defendant may be entitled to a reduction in restitution for funds recovered by the victim through insurance and other sources, defendant is not entitled to the reduction of restitution to the amount of the victim’s insurance deductible, where the victim does not request payment from the insurer.

B. Sentencing – Reasons for Sentencing – Consecutive Sentencing

State v. Hill, 878 N.W.2d 269 (Iowa 2016) Even if there is a statutory presumption that sentences will run consecutively to one another, where the district court has discretion to impose concurrent sentences, it must articulate reasons for imposing consecutive sentences, and general reasons for imposing the particular total sentence are not appropriate.

– The court is not precluded from using the boilerplate reasons set out in the form sentencing order. But the

court must identify them as justifying consecutive sentences. Essentially, the court must acknowledge that it

possesses the authority to impose concurrent sentences. To the extent that State v. Hennings, 791 N.W.2d 838

(Iowa 2010) and State v. Johnson, 445 N.W.2d 337 (Iowa 1989) may be read to hold that the district court’s

statement of reasons apply to all aspects of the sentence, including its consecutive nature, Justice Waterman

noted that Hennings and Johnson are overruled. VI. Appeal and Collateral Review

A. Direct Appeal

1. Appealable Issues – Forfeiture of Bond in Sentencing

State v. Letscher, 888 N.W.2d 880 (Iowa 2016) While forfeiture of appearance bond is generally regarded as an issue collateral to the criminal case, subject to separate civil proceedings, where bond is forfeited as part of the sentencing order it may be challenged in the appeal of the criminal case like any other sentencing issue.

– And because sentencing issues may be raised for the first time on appeal, the defendant may raise

the issue on appeal despite the fact that the issue was not raised at the district court level. -32-

2. . Preservation of Error

a. Constitutional Claims – Assertion of State Constitutional Claims v. Federal

State v. Ary, 877 N.W.2d 686 (Iowa 2016) Where defendant raises a constitutional claim at trial, but does not specify that it is based upon the state or federal constitutions, and where the defendant does not set out a framework for interpreting the issue differently under the state constitution, the reviewing court will consider the claim under both the state and federal constitutions and, in most cases, will apply the federal constitutional framework in analyzing the claim.

– In Ary, Justice Wiggins provides an excellent review of the developing case law governing

the preservation of constitutional issues under the state constitution as opposed to under

parallel federal constitutional provisions:

To preserve error on a constitutional claim, counsel should inform the district court of the constitutional basis for any motion a party makes. When a party raises only a specific federal constitutional basis for a claim in district court and does not raise the question of ineffective assistance of counsel on appeal, the parallel state constitutional question is not preserved. State v. Prusha, 874 N.W.2d 627, 630 ([Iowa] 2016). However, when a party does not indicate the specific constitutional basis for a claim to which parallel provisions of the federal and state constitutions apply, we regard both the federal and state constitutional claims as preserved. State v. DeWitt, 811 N.W.2nd 460, 467 (Iowa 2012); State v. Harrington, 805 N.W.2d 391, 393 n.3 (Iowa 2011); King v. State, 797 N.W.2d 565, 571 (Iowa 2011). When counsel does not advance a distinct analytical framework under a parallel state constitutional provision, we ordinarily exercise prudence by applying the federal framework to our analysis of the state constitutional claim, but we may diverge from federal caselaw in our application of that framework under the state constitution. See In re Det. Of Matlock, 860 N.W.2d 898, 903 (Iowa 2015); State v. Short, 851 N.W.2d 474, 491 (Iowa 2014); State v. Baldon, 829 N.W.2d 785, 822-23 (Iowa 2013) (Appel, J., concurring specially); State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009); Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6-7 (Iowa 2004).

b. Federal Plain Error Review – Guideline Computation Error

Molina Martinez v. United States, ____ U.S. ____, 136 S.Ct. 1338, _____ L.Ed.2d ____ (2016) To establish plain error under Fed.R.Crim.P. 52(b) where the sentencing court erroneously calculates the defendant’s sentence under the United States Sentencing Guidelines but where the sentence was within the properly-calculated range, the defendant generally need not present additional evidence that his or her substantial rights were effected, as the erroneous calculation itself may often establish a deprivation of a substantial right. -33-

– There may be circumstances that may show that the sentencing decision was based upon

factors other than the guideline calculation, so Molina-Martinez does not establish an

absolute rule.

2. Standard of Review

a. Jury Selection

State v. Martin, 877 N.W.2d 859 (Iowa 2016) Control of jury selection is within the discretion of the district court, so review of arguments of improper voir dire is for abuse of discretion.

– Justice Hecht noted in Martin that neither of the parties suggested that the issue of

improper voir dire has a constitutional component, and reserved the question of whether

review under that circumstance might be de novo.

State v. Ary, 877 N.W.2d 686 (Iowa 2016) The Supreme Court has determined in various cases (State v. Gavin, 360 N.W.2d 817 (Iowa 1985) and State v. Staker, 220 N.W.2d 613 (Iowa 1974)) that review of an argument that defendant was denied a fair trial by an impartial jury based on rulings during jury selection is either de novo or for abuse of discretion, but where the outcome is the same under either standard, the Court declines to decide which standard applies.

b. Sentencing

State v. Hill, 878 N.W.2d 269 (Iowa 2016) While sentencing decisions are reviewed for abuse of discretion, where a particular sentence is not mandatory, the court must exercise its discretion.

– Particularly, where there is a presumption of consecutive sentences, but the district court

retains the discretion to sentence concurrently, the court must acknowledge that discretion

and articulate reasons for selecting a consecutive sentence.

3. Harmless Error – Structural Error

Williams v. Pennsylvania, _____ U.S. _____, 136 S.Ct. 1899, _____ L.Ed.2d _____ (2016) A due process challenge to the failure of an appellate judge to recuse him- or herself in a proceeding in which he or she was involved as an attorney is structural error.

– Because it is virtually impossible to ascertain what impact the one jurist’s bias had upon others on the panel on which he sat, a violation of this nature is not amenable to harmless error analysis. -34-

4. Ripeness

Taft v. Iowa District Court, 879 N.W.2d 634 (Iowa 2016) The Iowa Code §229A.8A(2) criteria for placement of a person committed under the Sexual Violent Predator Act into a transitional release program apply only to persons who are eligible for release, so constitutional challenges to the § 229A.8A(2) criteria lodged by a person not otherwise eligible for release are not ripe for appellate review.

B. State Postconviction Relief

1. Availability – Sex Offender Treatment Program Classification

Pettit v. Iowa Department of Corrections, _____ N.W.2d _____ (Iowa 2017) Because failure to submit to an Iowa Department of Corrections sex offender treatment program (SOTP) may result in the loss of good time and because, under Iowa Code § 903A.4, an inmate disciplinary hearing is not a contested case subject to the administrative procedures of Iowa Code Chapter 17A, SOTP classification is not reviewable under Chapter 17A, and the inmate must contest classification under the postconviction relief provision of Iowa Code § 822.2(f).

2. Newly Discovered Evidence – Prejudice

More v. State, 880 N.W.2d 487 (Iowa 2016) While the state relied heavily upon Compositional Bullet Lead Analysis (CBLA) evidence at defendant’s 1984 murder trial, and such evidence subsequently was discredited by scientific research, and even by the Federal Bureau of Investigation itself, the new developments, while qualifying as non- cumulative newly discovered evidence that could not have been discovered through due diligence at the time of trial, would not have resulted in a different verdict where defendant’s conviction was supported by other evidence.

– Several jurisdictions have wrestled with the impact of the discreditation of CBLA evidence upon

final convictions. Justice Appel painstakingly reviews their approaches in the More majority. More

also raised the issue under the Due Process Clause, but the Court determined that the evidence was

not so inherently unreliable that even permitting its consideration by the jury rendered his trial

fundamentally unfair.

3. Remedies – Claim that Guilty Plea Lacked Factual Basis

Yocum v. State, _____ N.W.2d _____ (Iowa 2016) Where defendant claims in postconviction that counsel was ineffective in permitting him to plead guilty to an offense for which there was no factual basis, the verdict is upheld where a factual basis for the plea can be established from the record made below.

– According to Justice Per Curiam, the Court has a number of alternatives when faced with a claim

that the factual basis for the plea is insufficient. If there, as in Yocum, a sufficient factual basis is -35-

made in the record, the plea is upheld. If the defendant has pleaded to the wrong offense, and no

factual basis may be made, the plea is vacated and the case is dismissed. If it appears that a factual

basis can be made, the case is remanded back to the district court.

C. Federal Habeas Corpus – Extent of Review

1. Deference to the state court

Woods v. Etherton, _____ U.S. _____, 136 S.Ct. 1149, _____ L.Ed.2d _____ (2016) Where reasonable jurists could disagree upon whether the content of an anonymous tip was offered to show its truth or simply to explain law enforcement’s reaction to it, and upon whether the defendant was prejudiced by it being placed in evidence, the state court is not objectively unreasonable in finding in favor of the government and in finding that appellate counsel was not ineffective in failing to raise the issue on appeal.

Kernan v. Hinojosa, _____ U.S. ____, 136 S.Ct. 1603, _____ L.Ed.2d _____ (2016) Where the state district court denies a prisoner’s challenge, on ex post facto grounds, to a new law restricting the prisoner’s access to good time on the ground that the challenge was filed in the wrong district, and where the highest state appellate court summarily affirms the denial, the federal habeas court errs in assuming that the state appellate court’s ruling was not on the merits of the constitutional claim, and that it is not bound to follow the deferential review of state interpretations of federal law mandated by the AEDPA.

2. State Procedural Rule

Johnson v. Lee, ______U.S. _____, 136 S.Ct. 1802, _____ L.Ed.2d _____ (2016) The California rule announced in In Re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953) that inmates may not raise issues for the first time in postconviction proceedings that could have been raised on direct appeal is firmly established in California and, despite the fact that summary dismissals of postconviction petitions on this ground do not always specifically cite Dixon, regularly followed, so the Dixon rule is an adequate procedural ground barring federal review of a California conviction.

– If a challenge to a state conviction is defaulted under a firmly established and regularly followed

procedural rule, the federal habeas court will generally refuse to hear it.

3. Remedies – Retroactive Application of New Rules

Montgomery v. Louisiana, _____ U.S. _____, 136 S.Ct. 718, _____ L.Ed.2d _____ (2016) The decision of the United States Supreme Court In Miller v. Alabama, 132 S.Ct. 2455 (2012) that the Eighth Amendment proscribes mandatory sentences of life without parole for defendants convicted of crimes committed as juveniles, announced a new substantive rule of constitutional law, and must be given retroactive application by the states.

– Under Teague v. Lane, 489 U.S. 286 (1989), new constitutional rules relating to procedural matters

generally are not retroactive. A substantive rule is one that precludes prosecution of a certain class -36-

of offender or offense. Such a conviction is never valid, and thus may be challenged in Habeas.

In one of his final written opinions as a living human being, Justice Scalia decried the fact

that a conviction that is perfectly valid when obtained may be upset after, in this case, fifty years.

Welch v. United States, ____ U.S. ____, 136 S.Ct. 1257, ____ L.Ed.2d ____ (2016) The decision of the United States Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015) that struck down, as constitutionally vague, language in the “residual clause” of the definition of a felony crime of violence as a predicate for sentencing as an Armed Career Criminal under 18 U.S.C. § 924(e) is a new substantive rule, and applies retroactively to cases of defendants imprisoned as armed career criminals whose convictions have become final. VII. Miscellaneous Issues

A. Remedies for Wrongfully Imprisoned Person – Iowa Code § 663A.1(1) -- Guilty Plea

Rhoades v. State, 880 N.W.2d 431 (Iowa 2016) Notwithstanding the fact that a defendant’s conviction based upon a plea of guilty was ultimately found void by the Iowa Supreme Court on grounds that it was unsupported by sufficient evidence, compensatory relief for a wrongful conviction under Iowa Code § 663A is categorically unavailable to defendants who pleaded guilty.

– Justice Appel leads us down a long, circuitous road in getting to this holding, hinting in many spots

that exceptions might be made where pleas were void, etc. But ultimately he found that the plain

language of the statute limits relief to the wrongfully convicted defendants who went to trial.

Nevertheless, Justice Appel’s opinion in Rhoades is packed to the gills with great language about

wrongful convictions and other subjects. 2017 Criminal Law Seminar

Introduction to Forensic Metrology

10:00 A.M.-12:00 P.M.

Presented by Ted Vosk Alaska Legal Services Corporation Phone: (425) 753-6343 Email: [email protected]

THURSDAY, APRIL 20 4/5/2017

WHAT DOES THIS TEST RESULT TELL US?

WHAT DO IDENTICAL TEST RESULTS TELL US?

1 4/5/2017

WHAT COULDN’T WE KNOW?

What is…

EPISTEMOLOGY The Question of How Do We Know What We Know?

Study of knowledge and justified belief -What is knowledge? - How is it created? - What are its limitations?

2 4/5/2017

EPISTEMOLOGY Structure of Knowledge

Inherent Epistemological Structure - Knowledge sought - Raw materials relied upon - Transformation to knowledge - Knowledge attainable - Robustness of knowledge

NATURE OF SCIENTIFIC KNOWLEDGE

Information Empirical Input/output Prior Knowledge

NATURE OF SCIENTIFIC KNOWLEDGE

Information Inference Empirical Transformation Rules Input/output Scientific Laws Prior Knowledge Heuristics

3 4/5/2017

NATURE OF SCIENTIFIC KNOWLEDGE

Information Inference Knowledge Empirical Transformation Rules Input/output Scientific Laws Prior Knowledge Heuristics ?

NATURE OF SCIENTIFIC STATEMENTS Citizen has a BrAC in excess of 0.08 g/210L

Intended Subject Actual Subject Result Reflects Reality Result Conveys Info. Physical State Inference Actual BrAC Believed BrAC Can NOT KNOW actual BrAC Can only BELIEVE based on information & inference

NATURE OF SCIENTIFIC KNOWLEDGE

Information Inference Knowledge Empirical Transformation Rules Info-Infer Network Input/output Scientific Laws Conclusions Prior Knowledge Heuristics Beliefs

Witness can NOT KNOW actual physical state Can only BELIEVE based on information & inference

4 4/5/2017

NATURE OF SCIENTIFIC KNOWLEDGE

Information Inference Knowledge Empirical Transformation Rules Info-Infer Network Input/output Scientific Laws Conclusions Prior Knowledge Heuristics Beliefs

Manner in which information is generated Rules of inference employed Metric of robustness of beliefs/conclusions

EPISTEMOLOGICAL METRICS IN SCIENCE Error Analysis Uncertainty Analysis

SCIENCE IS APPLIED EPISTEMOLOGY Information Inference Empirical Transformation Rules Input/output Scientific Laws Prior Knowledge Heuristics Knowledge Info-Infer Network Conclusions Justified Belief

5 4/5/2017

MEASUREMENT The “process of experimentally obtaining one or more quantity values that can reasonably be attributed to a quantity.”

Quantity values determined through comparison of quantities. Measurement results CAN NOT reveal a quantity’s true value

METROLOGY The science of measurement and its application Epistemic scaffolding upon which knowledge through measurement is built.

Metrology CAN reveal the conclusions measured results support

ELEMENTS OF METROLOGY

Measurand: Validation: Quantity to be measured Instruments State, environment, etc… Procedures

Weights & Measures: Measurement interpretation: Reference standards Reporting results Traceability Error & Uncertainty

Good Measurement Practices: Metrological Standards: SOPs General & specific Calibration Accreditation

6 4/5/2017

MEASURAND

The “quantity intended to be measured.”

MEASURAND OF A BREATH TEST

DUI & MEASURAND

g ∆BrAC 0.004 · 5 210 L

7 4/5/2017

MEASURAND

From, Vosk, T., & Emery, A., Forensic Metrology: Scientific Measurement and Inference for Lawyers, Judges, and Criminalists (CRC/Taylor Francis Group – In Press).

WEIGHTS & MEASURES

WEIGHTS & MEASURES

Reference Material

8 4/5/2017

TRACEABILITY Traceability: “Property of a measurement result whereby the result can be related to a reference through adocumentedunbrokenchainof calibrations, each contributing to the measurement uncertainty.”

BREATH TESTS & TRACEABILITY

“If the citizens of the State of Washington are to have any confidence in the breath‐testing program, that program has to have some credence in the scientific community as a whole.”

9 4/5/2017

WEIGHTS & MEASURES

From, Vosk, T., & Emery, A., Forensic Metrology: Scientific Measurement and Inference for Lawyers, Judges, and Criminalists (CRC/Taylor Francis Group – In Press).

GOOD MEASUREMENT PRACTICES

GMP & QUALITY ASSURANCE

10 4/5/2017

CALIBRATION 1: True values → Indications 2: Indications → Reliable results

(c) 2010 Ted Vosk

RANGE OF CALIBRATION

(c) 2010 Ted Vosk

GOOD MEASUREMENT PRACTICES

From, Vosk, T., & Emery, A., Forensic Metrology: Scientific Measurement and Inference for Lawyers, Judges, and Criminalists (CRC/Taylor Francis Group – In Press).

11 4/5/2017

VALIDATION

Determination of extent to which method can measure what intended and limitations in conclusions supported.

VALIDATION The most important information from a validation study is: (1) Can a method discriminate hypothesis from alternatives; (2) Can a method measure a quantity of interest; (3) Sources and magnitude of error/uncertainty; (4) Consequences of error/uncertainty on the inferences.

DUI & VALIDATION

And the answer is… FUBAR!!!

“[T]his laboratory has prepared simulator solutions for over 20 years. No solution has ever left this laboratory with an incorrect concentration.” Ann Marie Gordon, April 2007.

12 4/5/2017

VALIDATION

From, Vosk, T., & Emery, A., Forensic Metrology: Scientific Measurement and Inference for Lawyers, Judges, and Criminalists (CRC/Taylor Francis Group – In Press).

SCIENTIFIC STANDARDS “Standards provide the foundation against which performance, reliability, and validity can be assessed. Adherence to standards reduces bias, improves consistency, and enhances the validity and reliability of results.”

ISO 17025 “This International Standard specifies the general requirements for the competence to carry out tests and/or calibrations…[and] is applicable to all organizations performing tests and/or calibrations.” ISO 17025 § 1.1 – 1.2.

13 4/5/2017

MEASUREMENT UNCERTAINTY

ACCURATE AND RELIABLE

EXPERT

ACCURATE AND RELIABLE

“That is an ‘ACCURATE AND RELIABLE’ test result…and they are both equal to or greater than the 0.08.”

14 4/5/2017

ACCURATE AND RELIABLE

“I can say that this individual’s BrAC exceeds a 0.08 BEYOND A REASONABLE DOUBT.”

ACCURATE AND RELIABLE

I can say this Citizen’s breath alcohol concentration is greater than a 0.08 beyond a reasonable doubt.

ERROR ANALYSIS εmeas = εsys + εran εsys εran

2 σ = √[∑(yi-ӯ) /(n-1)]

15 4/5/2017

BEST ESTIMATE OF TRUE BRAC

All results must be corrected for bias.

Bias Correction

Ycor = Ymeas –bias

CONFIDENCE INTERVAL

Population Mean

C.I. = ymeas ±3∆

MEANING OF PROBABILITY 10 White marbles & 10 Blue marbles

Frequentist Relative Frequency

P(b)sel = 47% P(b)is = 0% - 100% Probability refers to process, frequency of selection during repeated sampling, not unique or determined event.

16 4/5/2017

MEANING OF PROBABILITY 10 White marbles & 10 Blue marbles

Bayesian Relative Degree of Belief P(b)sel = 50% P(b)is = 50% Probability refers to state of knowledge, relative strength of belief, includes unique or determined event.

MEASUREMENT UNCERTAINTY

ymeas = Prob. Dist.

CHARACTERIZING STATE OF KNOWLEDGE

From, Vosk, T., & Emery, A., Forensic Metrology: Scientific Measurement and Inference for Lawyers, Judges, and Criminalists (CRC/Taylor Francis Group – In Press).

17 4/5/2017

CHARACTERIZING STATE OF KNOWLEDGE

From, Vosk, T., & Emery, A., Forensic Metrology: Scientific Measurement and Inference for Lawyers, Judges, and Criminalists (CRC/Taylor Francis Group – In Press).

CHARACTERIZING STATE OF KNOWLEDGE

From, Vosk, T., & Emery, A., Forensic Metrology: Scientific Measurement and Inference for Lawyers, Judges, and Criminalists (CRC/Taylor Francis Group – In Press).

MEASUREMENT UNCERTAINTY

Characterization of the dispersion of values reasonably believed to be attributable to a measurand, based on the available information.

18 4/5/2017

DETERMINING UNCERTAINTY

Propagation of Uncertainty:

EXPRESSING UNCERTAINTY The Coverage Interval

Ytrue = Yb ± U (99%)

MEASUREMENT UNCERTAINTY Confidence Interval ≠ Coverage Interval

19 4/5/2017

MEASUREMENT UNCERTAINTY

Measurement error is an unknowable quantity in the realm of the state of nature.

Measurement uncertainty is a quantifiable parameter in the realm of the state of knowledge about nature.

UNDERSTANDING REQUIRES UNCERTAINTY

MEASUREMENT UNCERTAINTY

From, Vosk, T., & Emery, A., Forensic Metrology: Scientific Measurement and Inference for Lawyers, Judges, and Criminalists (CRC/Taylor Francis Group – In Press).

20 4/5/2017

Available at Amazon.com

Ted Vosk Alaska Legal Services Corporation (425) 753-6343 ◊ [email protected] Introduction to Forensic Metrology Criminal Law Seminar Iowa State Bar Association Des Moines, IA. April, 20 2017

21

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Library of Congress Cataloging-in-Publication Data

Vosk, Ted, author. Forensic metrology : scientific measurement and inference for lawyers, judges and criminalists / Ted Vosk, Ashley F. Emery. pages cm. -- (International forensic science and investigation) Includes bibliographical references and index. ISBN 978-1-4398-2619-5 (hardback : acid-free paper) 1. Forensic sciences. 2. Metrology. 3. Evidence (Law) I. Emery, A. F. (Ashley Francis), 1934- II. Title.

HV8073.5.V67 2015 363.25--dc23 2014024204

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For Kris My love, my light, and my world...

To Linda for her love, patience, and unwavering support Acknowledgments

I would not have been able to write this text without those who fed my passion for physics, astronomy, and mathematics almost two decades ago as an undergraduate at Eastern Michigan University, including Professors Norbert Vance, Jim Sheerin, Waden Shen and, in particular, Professors Natthi Sharma and Mary Yorke whose love and patience changed my life. Those legal and forensic professionals and organizations who have provided opportunities for me to educate practitioners around the world about forensic metrology through my writings and lectures, as well as those who have done so alongside me, also have my thanks. These include A.R.W. Forrest, Rod Kennedy, Thomas Bohan, William “Bubba” Head, Edward Fitzgerald, Henry Swofford, Lauren McLane, Steve Oberman, Pat Barone, Jay Siegel, Doug Cowan, Jon Fox, the Ameri- can Academy of Forensic Sciences, U.S. Drug Enforcement Administration’s South- west Lab, American Physical Society, Supreme Court of the State of Virginia, Law Office of the Cook County Public Defenders, National College for DUI Defense, National Association of Criminal Defense Lawyers, Washington Association of Criminal Defense Lawyers and criminal defense, DUI, and bar organizations from states around the United States. Nor would I be writing this text if not for the many lawyers, forensic scientists, and organizations here in Washington and around the country who have contributed to the development of forensic metrology in the courtroom. These include Andy Robertson, Quentin Batjer, Howard Stein, Rod Gullberg, Edward Imwinkelried, Sandra Rodriguez-Cruz, Mike Nichols, Justin McShane, Chris Boscia, Rod Frechette, David Kaye, Jonathon Rands, Eric Gaston, Peter Johnson, Linda Callahan, Scott “Scooter” Robbins, Joe St. Louis, Bob Keefer, Liz Anna Padula, Dr. Jennifer Souders, Dr. Andreas Stolz, Judges David Steiner, Mark Chow and Darrell Phillipson, Jason Sklerov, George Bianchi, Sven Radhe, who assisted with my research for Chapter 3, Dr. Jerry Messman, Janine Arvizu, the Washington Foundation for Criminal Jus- tice, which funded much of the litigation I’ve undertaken using forensic metrology to bring about reforms, and, in particular, my sidekick Kevin Trombold who is always willing to go tilting after windmills with me. Without Gil Sapir I never would have had the opportunity to write this book and without Max Houck nobody would have taken notice. Nor would it have been a reality had our editor, Becky Masterman, not continued to believe in us over the almost four years it took to get started and the subsequent 10 months it took to write. My coauthor and friend, Ashley Emery, is responsible for this book reaching completion. He spurred me on when I was ready to quit. Thank you, Ash. My mom, Susan, and my little brother, Rob, I’m sorry that I was never strong enough to protect you. But you are part of every fight I make and every word I write to make the world a little better place to live in.

xxxvii xxxviii Acknowledgments

And, as always, it was my wife, Kris, who made me believe. Your love continues to lift me and make all things possible.

T. Vosk

I would like to acknowledge my former colleagues Charles Kippenhan (who intro- duced me to E.T. Jaynes’ ideas) and Dean McFeron whose support and interest was a great encouragement when I first became seriously involved in Bayesian inference. Unfortunately, both died before this book was completed. Also to Galen Shorack (Department of Statistics, University of Washington) and Joseph Garbini (Depart- ment of Mechanical Engineering, University of Washington) with whom I had many fascinating discussions about statistics, random processes, and experiment design for optimal data analysis. To my former students, particularly Dawn Bardot and Elisa- betta Valenti who journeyed with me through some very complicated data analyses and validation/verification problems. Above all I need to especially acknowledge Norman McCormick (professor emer- itus, mechanical engineering) who encouraged me, guided me through my journey from plain Tex to LaTex, and as a published author gave me invaluable counsel and constant encouragement through the birth of this book.

A. Emery Authors

Ted Vosk. The product of a broken home, Ted was kicked out of his house as a teenager. Although managing to graduate from high school on time, he lived on the streets, homeless, for the better part of the next four years. It was during this period that Ted began to teach himself physics and mathematics from books obtained at the public library. After getting into trouble with the military and running afoul of the law, he decided to change his situation. He gained admittance to Eastern Michigan University where he was named a national Goldwater Scholar before graduating with honors in theoretical physics and mathematics. Suffering from severe ulcerative-colitis, Ted finished his last semester at Eastern Michigan from a hospital bed. Days after graduating, he underwent a 16-hour surgery to remove his colon. Despite this trauma, Ted entered the PhD program in physics at Cornell University the following fall before moving on to Harvard Law School where he obtained his JD. Since law school, Ted has been employed as a prosecutor, public defender, and the acting managing director of a National Science Foundation Science and Tech- nology Center. On the side, he helped form Celestial North, a nonprofit organization dedicated to teaching astronomy to the public and in schools. As vice president of Celestial North, he played an integral role in its winning the Out of This World Award for Excellence in Astronomy Outreach given by Astronomy Magazine. He is currently a legal/science writer, criminal defense attorney, and legal/forensic consultant. Over the past decade, Ted has been a driving force behind the reform of forensic practices in Washington State and the laws governing the use of the evidence they produce. His work in and out of the courtroom continues to help shape law in juris- dictions around the country. For this work, he has been awarded the President’s Award from the Washington Association of Criminal Defense Lawyers and the Certificate of Distinction from the Washington Foundation for Criminal Justice. A Fellow of the American Academy of Forensic Sciences and member of Mensa, he has written, broadcast, presented, and taught around the country on topics ranging from the ori- gins of the universe to the doctrine of constitutional separation of powers. He has been published in legal and scientific media, including the Journal of Forensic Sciences, and his work has been cited in others, including Law Reviews. During the past several years, Ted waged the fight for reform while suffering from debilitating Crohn’s disease. This delayed the beginning of this text by almost 4 years. In the Summer of 2012 he underwent life saving surgery to remove a major section of what remained of his digestive system. With help from his wife and friends around the country, though, he rose once again. Within six months he ran two half marathons on consecutive weekends to help find a cure for the diseases that have afflicted him for two decades so that others wouldn’t have to suffer as he has. Only in the wake of

xxxix xl Authors this, about 10 months before this text was written, was he able to sit down and begin writing. Ted lives in Washington State with his wife, Kris, whose love saved him from more destructive paths. Although his life has been one of overcoming obstacles, it has always been Kris who gave him the strength to do so. Whether chasing down active volcanoes, swimming with wild dolphins, or simply sharing a sunset in the mountains, they live their lives on their own terms ... together.

Ashley F. Emery is a professor of mechanical engineering at the University of Wash- ington and an adjunct professor of architecture and of industrial and systems energy. He has been an associate dean of the College of Engineering, chair of the Department of Mechanical Engineering, and director for the Thermal Transport Program of the National Science Foundation. His areas of research interest are heat transfer, fluid dynamics, architectural and building energy, thermal stresses, fracture, design and interpretation of experiments, and Bayesian inference. He has published more than 200 technical papers in refereed journals. He is a fellow of the American Society of Mechanical Engineers and the American Society of Heating, Refrigerating and Air- Conditioning Engineers. He is a recipient of the American Society of Mechanical Engineers Heat Transfer Memorial Award and the 75th Anniversary Heat Transfer Award. Prologue

This text grew out of a 120-page outline I wrote from a hospital bed to accom- pany a presentation I delivered at William “Bubba” Head’s National Forensic Blood and Urine Testing Seminar in May of 2009. The presentation was titled, Forensic Metrology—The Key to the Kingdom, and is the first I’m aware of to introduce foren- sic metrology as an independent forensic discipline to the legal community. At the time I wrote the outline, a Google search of the phrase Forensic Metrology turned up a single reference in the literature. It was a generic paragraph in a chapter about measurement standards which read:

Forensic metrology is the application of measurements and hence measurement stan- dards to the solution and prevention of crime. It is practiced within the laboratories of law enforcement agencies throughout the world. Worldwide activities in forensic metrology are coordinated by Interpol (International police; the international agency that coordi- nates the police activities of the member nations). Within the U.S., the federal Bureau of Investigation (FBI), an agency of the Department of Justice, is the focal point for most U.S. forensic metrology activities.1

Given the paucity of literature addressing metrology as a forensic discipline and the need for legal professionals to become acquainted with it as such, I made the outline available as a self-published PDF text titled, Forensic Metrology: A Primer for Lawyers and Judges.2 Interest in the subject grew quickly in the legal community. Legal professionals were not the only ones who wanted to learn more, though. Before long, I was getting calls from forensic scientists as well wanting to know about this “new” discipline. Less than a year later, in February 2010, I presented, Metrology: A Knowledge Base for Communication and Understanding, at the 62nd annual meeting of the American Academy of Forensic Sciences as part of a Workshop that forensic scientist Max Houck, Dr. Ashley Emery, and I put together.3 By this time, the Primer had been renamed Forensic Metrology: A Primer for Lawyers, Judges and Forensic Scientists.∗ Max passed the Primer on to his publisher and recommended that it be turned into a book. Within a short period of time, CRC Press contacted me with an offer to turn the Primer into this textbook. The text actually started taking shape almost a decade before this, though, in Seattle, Washington in early 2001. That is when I began work as a public defender. The firm I was working for was challenging the admissibility of breath alcohol results. The issue involved was the measurement of temperature of “simulator” solutions used to calibrate and check the accuracy of breath test machines. With degrees in physics and mathematics, I was well equipped for the challenges presented by the use of forensic science so my boss, Howard Stein, asked me to take a look at it. It soon became apparent that there was more wrong than anyone had realized.

∗ The latest version of the Primer is included on the CD that accompanies this text. xli xlii Prologue

The State Toxicology Lab claimed that the accuracy of the temperatures reported for the solutions were given by the “margin of error” of the thermometers used to measure them. The problem with this is that the claim ignored other, potentially more significant, sources of error involved in the measurement. As an attorney, though, my role in the courtroom is as an advocate, not a witness. If I was going to be able to prove this, I needed an expert who could investigate and testify about the issues involved to a judge. I made up a list of potential experts in the measurement of temperature to inter- view. The first name on my list forgot about our meeting and wasn’t there when I arrived. This turned out to be one of those fortuitous turns of fate that so often leads to something special. I say this because the next name on the list was an individual with whom I would become close friends and collaborate with for over a decade. Dr. Ashley Emery, or Ash as I came to call him, is a professor of mechanical engineering at the University of Washington. His research focus in thermodynamics and heat transfer made him a perfect candidate for what I needed. Given his many accomplishments, however, which included being part of a group that consulted for NASA concerning the heat shield used on the Space Shuttle, I didn’t think he would be interested. To my surprise, after I finished explaining the issue, Ash jumped right in. To him, this wasn’t about a courtroom battle. Rather, it was a matter of good science and of being able to apply the knowledge he had built over a lifetime to the solution of a new problem. The next couple of months involved a lot of hard work. Ash conducted a study on the thermometers used and found that the uncertainty of the temperatures reported was significantly greater than claimed. I visited the State Lab in question and discov- ered that the thermometers themselves were not being used in a manner consistent with their validation rendering any values reported unreliable. After a day-long hearing wherein these issues were addressed, the Court suppressed the breath test results.4 The victory wasn’t about “just trying to get another guilty person off” as is so often lamented by critics, though. It was about preventing the government from using flawed science to deprive citizens of their liberty. Every one of us is innocent until proven guilty. That is one of the safeguards against tyranny provided by our Consti- tution. When the government tells a judge or jury that science supports claims that it does not, it is tantamount to committing a fraud against our system of Justice. It doesn’t matter whether the deception is purposeful or not because the result is the same: a Citizen’s liberty is imperiled by a falsehood. This is what Ashley and I have fought against for over a decade. Bad government science doesn’t necessarily arise from bad government scientists. Nor is the desire to ensure that science is used correctly to discover truth in the court- room confined to defense attorneys. Forensic scientists, prosecutors, and judges have sought the same goals Ash and I have and worked with us to achieve them. In 2004, forensic scientist, and then head of the Washington State Breath Test Program, Rod Gullberg helped Scott Wonder and I to keep the government from administratively suspending a woman’s driver’s license.5 She had submitted to a breath test that yielded duplicate results both in excess of the legal limit. Through Rod, we showed that the uncertainty associated with the results proved that there was Prologue xliii actually a 56.75% probability that her true breath alcohol concentration was less than the legal limit. The bad government science in this case was not that done by forensic scientists. To the contrary, it was one of the State’s top forensic scientists who, without charging this woman a single penny, used metrology to establish that it was more likely than not that she had not violated the law. Rather, it was what government officials did with otherwise good science that rendered it bad. Ignoring what science said about the conclusions these results supported, the Washington Department of Licensing suspended this Citizen’s license anyway. It was only on appeal that a court reversed the suspension. Without her license, this woman would have lost her job. And without Rod’s help, she probably would have lost her license. Much of the work we’ve done over the years has involved forensic breath and blood alcohol testing. The determination of a person’s breath or blood alcohol concentration in these ways are examples of forensic measurements. This type of forensic evidence is quite common because the crime of DUI is defined by the results of these measure- ments. Although neither Ash nor I were forensic scientists, or even very familiar with forensic breath and blood alcohol testing in the beginning, we were able to subject them to analysis because we were both well versed in the science of metrology. Metrology is the science of measurement. Its principles apply to all measurements made anywhere and for any purpose and provide the basic framework necessary to perform, analyze, and arrive at sound conclusions based on measured results. Mea- surement uncertainty and the use of validated methods, which were relied upon in the cases above, are fundamental elements of metrology. They are by no means the only ones though. Another is measurement traceability, which ensures that measured results represent what they are purported to. On the heels of our first victory, Ash and I used traceability to help attorneys Howard Stein and Scott “Scooter” Robbins put an end to more bad government science and get the first published decision to explicitly recognize metrology in a forensic context.6 And there are many other metrological tools that can be relied upon in the courtroom and lab alike to ensure that the misuse of science doesn’t undermine the discovery of truth in our system of justice. While breath and blood alcohol tests are common forensic measurements, they are by no means the only ones. Determining the weight of seized drugs using a scale; the speed of a motor vehicle using a radar; the angle at which a bullet entered a wall using a protractor; and even the distance between a drug transaction and a school using a measuring wheel; these are just a few of the many types of forensic measurements that are performed. And the same underlying metrological principles that allowed Ash and I to analyze and determine the truth about breath and blood alcohol measurements apply to each of these and every other forensic measurement as well. This leads to an astonishing conclusion. Since the science of metrology under- lies all measurements, its principles provide a basic framework for critical evaluation of all measurements, regardless of the field they arise out of. Given a familiarity with metrology, scientists and police officers can better perform and communicate the results of the forensic measurements they make; lawyers can better understand, present and cross-examine the results of forensic measurements intended to be used as evidence; judges will be better able to subject testimony or evidence based on forensic measurements to the appropriate gatekeeping analysis; and each of these xliv Prologue participants will be better prepared to play their role in ensuring that the misuse of science doesn’t undermine the search for truth in the courtroom. This was the idea I had in mind when, in the Summer of 2007, a forensic scien- tist within the Washington State Toxicology Lab was discovered committing perjury about measurements she claimed to have made. Upon further investigation, though, a team consisting of Kevin Trombold, Andy Robertson, Quentin Bajter, Ash, and myself, with assistance from others around the State, discovered that the Lab’s prob- lems went far deeper than perjury. The labs process for creating simulator solutions for the calibration and checking of breath test machines was in a state of disarray. Failures to validate procedures, follow approved protocols, adhere to scientifically accepted consensus standards, properly calibrate or maintain equipment, and even to simply check the correctness of results and calculations were endemic. In a private memo to Washington’s Governor, the State Toxicologist explained that the measurement procedures in question “had been in place for over twenty years and had gone unchallenged, leading to complacency.” What allowed us to find what others had missed over the years was, again, metrology. Viewed through the appropriate metrological framework, it became clear that what complacency had led to was the systemic failure of the Lab to adhere to fundamental scientific requirements for the acquisition of reliable measurement results. After a seven-day hearing that included testimony from nine experts, declarations from five others, as well as 161 exhibits, a panel of three judges issued a 30-page ruling suppressing all breath test results until the Lab fixed the problem’s identified.7 Under the leadership of newly hired state toxicologist Dr. Fiona Couper and quality assurance manager Jason Sklerov, the Lab subsequently used the same metro- logical framework to fix its problems that we had used to discover them. It did so by implementing fundamental metrological principles and practices and obtain- ing accreditation under ISO 17025, the international standard that embodies them. Because of this, the Washington State Toxicology Lab has one of the best Breath Test Calibration programs in the United States. The same metrological principles that can be such effective tools in the hands of legal professionals can be even more powerful when employed by competent forensic scientists. In the wake of these proceedings, I was contacted by lawyers from around the country. I explained how we had used metrology to discover the Lab’s problems and even shared the 150-page brief we submitted in the Washington proceedings. One of those lawyers was Bryan Brown who subsequently used many of the same metrolog- ical principles to expose problems in breath tests being administered in Washington DC. What we had done using metrology in Washington State could be done just as well by others elsewhere. Unfortunately, most in the legal community had still never heard of metrology and were unaware of what a powerful tool for the discovery of truth it was. It was during this period that Bubba invited me to teach an audience of crim- inal defense lawyers about metrology at his seminar. Shortly after this I attended the weeklong meeting of the American Academy of Forensic Sciences in Denver, Colorado. Near the end of the week, the National Academy of Sciences released a report on the state of forensic science in America.8 It was very critical of the prac- tices engaged in by many of the forensic sciences. As you will see as you make your Prologue xlv way through this text, the very issues identified by the report are those that metrol- ogy addresses. Method validation, adherence to appropriate practices as evidenced by consensus standards, the determination and reporting of measurement uncertainty, and others. What we had done in Washington State with respect to forensic measure- ment was to not only beat the Academy to the punch in the discovery of these issues, but also to the identification of the appropriate framework for their solution. But how could that knowledge be shared with as wide an audience as possible? Judges and lawyers needed something that set forth the framework of metrology in a manner that could be easily understood and relied upon. That’s when the idea of the Primer hit me. A brief hospitalization gave me the time to put together the 120-page Primer that would eventually introduce lawyers and judges around the Country to the subject of forensic metrology. Examples of lawyers who were introduced to metrology through the Primer and presentations made based on it include: Mike Nichols from Michigan who was successful in getting courts there to require the determination and reporting of uncer- tainty of forensic blood alcohol results; Justin McShane from Pennsylvania who employed its principles in educating courts there on the importance of the range of calibration; and Joe St. Louis from Arizona who also used the briefing from the Wash- ington State proceedings to help identify and expose similar problems in one of the Arizona’s toxicology labs. And each of these individuals has already begun to pass on what they’ve learned. And this is just the tip of the iceberg. Not only can lawyers learn forensic metrology, but the success of these individuals proves that they can employ its principles as good, if not better, than we originally did in Washington. In the forensics community, metrology is being relied upon to address many of the issues identified by the National Academy of Sciences. Its principles are help- ing to improve how forensic measurements are developed, performed, and reported. Accreditation and adherence to international scientific standards are restoring con- fidence that forensic measurements comply with the same rigorous methodology followed in other sciences. And it is providing a common language for all those engaged in making, or relying upon, forensic measurements to communicate about them regardless of application. Max Houck, co-chair of the AAFS workshop where the Primer was introduced to the forensic community, has not only done much to contribute to the growth of foren- sic metrology as a discipline, but he relies upon it in practice. As the first director of Washington DC’s Department of Forensic Sciences, he not only sought accredi- tation to ISO 17025 standards for the Lab, but achieved it in the almost unheard of time frame of 8 months. Accreditation to ISO 17025 provides objective evidence to the public that measured results reported by the Lab and relied upon by the criminal justice system for the determination of factual truth can be trusted. Present at the AAFS workshop Max, Ashley, and I put together was Dr. Sandra Rodriguez-Cruz. Dr. Rodriguez-Cruz is a senior forensic chemist with the U.S. Drug Enforcement Administration and the Secretariat of SWGDRUG, the Scientific Work- ing Group for the Analysis of Seized Drugs. She has been a driving force behind the adoption and recommendation of rigorous metrological practices in the standards published by SWGDRUG. In addition to this, not only does she employ and teach xlvi Prologue metrology within the confines of the DEA, but she also spreads awareness by pre- senting on it at forensic conferences. None of this is done to the simple end that the government will “win” when it enters the arena. Rather it is to ensure that those charged with the task of discovering truth in the courtroom have the best evidence available to do so. Ashley and I teamed up once again in 2009, first with Attorney Eric Gaston and then later separately with Kevin Trombold and Andy Robertson, to wage a new bat- tle over the use of forensic measurements in the courtroom. The second skirmish involved a five-day hearing that included testimony from Ash and the government’s top three experts as well as 93 exhibits. After the smoke cleared, the panel of three judges presiding over the hearing issued a 30-page order declaring that breath test results would henceforth be inadmissible unless they were accompanied by their uncertainty. The rulings from these cases garnered nationwide attention.9 Lawyers, judges, forensic scientists, and scholars from around the country began discussing and writing about the importance of providing a measured result’s uncertainty when the result will be relied upon as evidence at trial. Thomas Bohan, former president of the American Academy of Forensic Sciences, declared it to be “a landmark decision, engendering a huge advance toward rationality in our justice system and a victory for both forensic science and the pursuit of truth.”10 Law professor Edward Imwinkelried followed this up by explaining that reporting the uncertainty of forensic measurements:

... promotes honesty in the courtroom. It is axiomatic that measurements are inher- ently uncertain. As the Washington cases emphasize, it is misleading to present the trier of fact with only a single point value. There is a grave risk that without the ben- efit of qualifying testimony, the trier will mistakenly treat the point value as exact and ascribe undue weight to the evidence. The antidote—the necessary qualification—is a quantitative measure of the margin of error or uncertainty.11

The battle was subsequently taken up by defense attorneys in several states includ- ing Michigan, Virginia, New Mexico, Arizona, California, and even in the Federal Courts, and continues to spread as of the time of this writing in January 2014.∗ It’s not just defense counsel who have joined this quest, though. In a 2013 paper published in the Santa Clara Law Review, my friend, prosecutor Chris Boscia, pro- vided the rational for why all those advocating on behalf of the state should be fighting for the same thing. In fact, after a trial court denied a defense motion to require the reporting of uncertainty and traceability with blood test results, Chris worked with the lab to make sure that this was done for all future results despite the court’s rul- ing. And now he’s working to make this a mandatory regulatory requirement. Why? Because he wants to ensure that the science presented by the state in court is “the best science regardless of what the law requires.”12 The truth about any scientific measurement is that it can never reveal what a quantity’s true value is. The power of metrology lies in the fact that it provides the

∗ The battle has been taken up in Michigan by Mike Nichols (and expert Andreas Stolz), Virginia by Bob Keefer, New Mexico and the Federal Courts by Rod Frechette (and expert Janine Arvizu) and in California by Peter Johnson. Prologue xlvii framework by which we can determine what conclusions about that value are sup- ported by measured results. It tells us how to develop and perform measurements so that high-quality information can be obtained. It helps us to understand what our results mean and represent. And finally, it provides the rules that guide our inferences from measured results to the conclusions they support. Whether you are a prosecu- tor or defense attorney, judge or forensic scientist, or even a law enforcement officer who performs measurements as part of investigations in the field, forensic metrol- ogy provides a powerful tool for determining the truth when forensic measurements are relied upon. Forensic science, legal practice, and justice itself are improved by a familiarity with the principles of forensic metrology. The focus of this text is on the metrological structure required to reach sound conclusions based on measured results and the inferences those results support. Although metrological requirements for the design and performance of measure- ment are addressed in this context, the text does not set forth in detail procedures for doing so. Section I provides an introduction to forensic metrology for both lawyers and sci- entists. The focus is on the development of principles and concepts. The scientific underpinnings of each subject are presented followed by an examination of each in legal and forensic contexts. By presenting the material in this manner, it will allow the lawyer, judge, or forensic scientist to immediately see its application to the work they perform. Although there is some math, particularly in Chapters 6 and 7, it is not necessary to work through it to understand the materials. For the forensic scientist, it provides some necessary foundation for employing metrology in the lab. For the legal profes- sional, it shows the type of analysis you should expect from a competent forensic lab and will prepare you for what you should see when metrologically sound results are provided in discovery or presented in court. The accompanying CD includes the latest version of the Forensic Metrology Primer as well as motions, court decisions, and expert reports for legal practitioners. Section II of the text provides a more advanced and mathematically rigorous cover- age of the principles and methods of inference in metrology. Statistical, Bayesian and logical inference are presented and their relative strengths and weaknesses explored. On a practical level, this is intended for those who wish to engage in or challenge measurement-based inference. As such, although it’s primary target is the scientist, legal professionals who feel comfortable with its material will find it very useful as well. On a more fundamental level, it will be enjoyed by those who wish to under- stand the types of conclusions each school of inference can support and how their use can facilitate the search for factual truth in the courtroom. Citations in Sections I and II of the book follow different conventions. Citations in Section I of the book are formatted to make it more accessible to legal practitioners. Section II uses journal citation format which will be familiar to researchers. As I write this, a new decision out of Michigan suppressing blood alcohol test results for failure to establish their traceability or accurately determine their uncer- tainty has just been handed down by a trial court. And here in Washington, we have just begun to introduce the criminal justice system to the concept of a measurand and the important role it plays in forensic measurements. xlviii Prologue

From the time of our first case together in 2001, the quest Ash and I have been on is one to stop the government from using flawed science to deprive citizens of their liberty. And beginning with the Primer, our goal has been to teach others the principles of metrology, enabling them to join the fight to improve the quality of justice and science when forensic measurements are relied upon in the courtroom. The list of those who have contributed is long and there have been both victories and defeats, but every fight and every individual who has helped wage it has brought about improvement. We hope that this text will set spark to tinder and arm you to join the fight ... because neither science nor justice can be any better than the people dedicated to their perfection.

ENDNOTES

1. DeWayne Sharp, Measurement standards, in Measurement, Instrumentation, and Sensors Handbook 5-4, 1999. 2. Ted Vosk,Forensic metrology: A primer for lawyers and judges, first published for National Forensic Blood and Urine Testing Seminar, San Diego, CA, 120pp., May, 2009. 3. Co-Chairs: Ted Vosk and Max Houck, Attorneys and scientists in the courtroom: Bridging the gap, Workshop for the American Academy of Forensic Sciences 62nd Annual Scientific (Feb. 22, 2010), in Proceedings of the American Academy of Forensic Sciences, Feb. 2010, at 15. 4. City of Bellevue v. Tinoco, No. BC 126146 (King Co. Dist. Ct. WA 09/11/2001). 5. Herrmann v. Dept. of Licensing, No. 04-2-18602-1 SEA (King Co. Sup. Ct. WA 02/04/2005). 6. City of Seattle v. Clark-Munoz, 93 P.3d 141 (Wash. 2004). 7. State v. Ahmach, No. C00627921 (King Co. Dist. Ct. – 1/30/08). 8. Nat’l Research Council, Nat’l Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, 2009. 9. State v. Fausto, No. C076949 (King Co. Dist. Ct. WA – 09/20/2010); State v. Weimer, No. 7036A- 09D, (Snohomish Co. Dist. Ct. WA – 3/23/10). 10. Ted Vosk, Trial by Numbers: Uncertainty in the Quest for Truth and Justice, the nacdl champion, Nov. 2010, at 48, 54. 11. Edward Imwinkelried, Forensic Metrology: The New Honesty about the Uncertainty of Measure- ments in Scientific Analysis 32 (UC Davis Legal Studies Research Paper Series, Research Paper No. 317 Dec., 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2186247. 12. Christopher Boscia, Strengthening Forensic Alcohol Analysis in California DUI Cases: A Prosecu- tor’s Perspective 53 Santa Clara l. rev. 733, 763, 2013. Section I

An Introduction to Forensic Metrology for Lawyers, Judges, and Forensic Scientists 1 Science, Metrology, and the Law

1.1 SCIENCE! Science has facilitated some of humankind’s greatest achievements. Through it, we have been able to formulate simple mathematical laws that describe the orderly Universe we inhabit; to peer back to the moments following its creation and to trace its evolution over billions of years; to explain the creation of our home planet some 4.5 billion years ago; and document the appearance and evolution of life that even- tually led to us. On a more practical level, science has freed humankind from its fear of the night through the creation of lights to guide us through the darkness; from the constraints of geography as automobiles and airplanes transport us across continents and over oceans; and finally even from the confines of our small planet itself as we reach out to travel to and explore other worlds. Science has allowed us to harness the power of the atom and the gene, for both creative and destructive ends. And through the technologies made possible by science, life today is one of ease compared to that of our brutish ancestors. Few would deny that our species relies upon science to answer questions of fact, both profound and practical, every day.

1.1.1 SCIENCE AND THE LAW Given the great power of science to help answer factual questions, one should not be surprised at its widespread employment in the investigation and trial of crimes. And, in fact, it has been observed that “[c]omplete, competent, and impartial forensic- science investigations can be that ‘touchstone of truth’ in a judicial process that works to see that the guilty are punished and the innocent are exonerated” [122].1 History teaches us, however, that courts, as do societies, often reject valid science in favor of widely held misconceptions. Perhaps, the most infamous example of a court rejecting valid science in favor of such a misconception is the 1630 trial of Galileo “where the scientist was con- victed of heresy for asserting that the earth revolves around the sun.”2 Even common sense dictated that Galileo must be wrong for if the Earth were actually moving about the sun in this manner everyone would feel it doing so. It wasn’t until 1983, 350 years after he had been sentenced to house arrest for the remainder of his life, that the Church reexamined Galileo’s evidence and admitted that it had made a mistake thereby exonerating him posthumously. And in what may be one of the first reported instances of expert testimony at trial, in 1665 an expert gave his “scientific” opinion that the accused were witches and, by practicing their witchcraft at the devil’s bid- ding, had bewitched several children. Thereafter, the accused were found guilty and

3 4 Forensic Metrology hanged [25].3 The issue of the validity of the process for determining whether one was a witch was never even raised.∗ Science has made great strides since the seventeenth century. Over the past decade, however, forensic science and its use in the courtroom have come under increasing fire by scientists, scholars, and legal professionals. The worst of the criticism may have come from a 2009 report published by the National Research Council of the National Academy of Sciences titled Strengthening Forensic Science in the United States: A Path Forward. One of the findings of the report was that “[t]he law’s greatest dilemma in its heavy reliance on forensic evidence [] concerns the question of whether—and to what extent—there is science in any given ‘forensic science’ discipline” [28].4 Given the significant role forensic evidence and testimony often plays in the courtroom, the weaknesses identified threaten to undermine the integrity of our system of justice as a whole. Thus, it is critically important for today’s forensic scientists to understand, be able to carry out and communicate good science. By itself, though, the forensic community cannot ensure that only good science is relied upon in the courtroom.

The adversarial process relating to the admission and exclusion of scientific evidence is not suited to the task of finding ‘scientific truth.’ The judicial system is encumbered by, among other things, judges and lawyers who generally lack the scientific expertise necessary to comprehend and evaluate forensic evidence in an informed manner... 5

As a result, oftentimes the law itself either inhibits, or, at the very least, fails to require, good scientific practices. For example, “established case law in many jurisdictions supports minimal analytical quality control and documentation” [70].6 If the law seeks outcomes consistent with scientific reality, it must require that sci- entific evidence “conform to the standards and criteria to which scientists themselves adhere” [10].7 “In this age of science we must build legal foundations that are sound in science as well as in law” [17].8 Although the forensic community can inform this process, they are not the ones with the power to shape those foundations. That power lies in the hands of legal professionals, the very lawyers and judges who rely upon and encounter such evidence on a daily basis and the academics who write about it. No longer can legal professionals fall back on the excuse that they lack the scien- tific background or experience to comprehend and evaluate forensic evidence. If the goal is to ensure just outcomes when scientific evidence is relied upon, then the legal profession must shoulder a significant burden as well.

1.1.2 A FOUNDATION FOR SCIENCE IN THE COURTROOM Where do we start, then, if we wish to give both forensic science and the legal doc- trines that govern its use a sound scientific foundation? A good way to start would be how scientific investigation itself typically starts: by setting forth, in as complete

∗ Reed v. State, 391 A.2d 364, 370 n.7 (Md. 1978). Science, Metrology, and the Law 5 a manner as possible, what it is we wish to investigate. We can do this by asking a seemingly simple question that still causes confusion and tumult: What is science?∗

1.2 WHAT IS SCIENCE? Exactly what constitutes “science” has long been a matter of debate. The word “sci- ence” comes from the Latin scientia, meaning knowledge. This is natural enough as science is characterized by the goal of acquiring knowledge. There are many activi- ties where the goal is the acquisition of knowledge, however, that would not be seen as science. For example, both philosophy and religion are frequently relied upon as a source of, or tool for obtaining, knowledge, but neither constitutes science. So, what is it that separates these disciplines from that which would be characterized as science?

1.2.1 KNOWLEDGE OF THE PHYSICAL UNIVERSE There are several elements that, when taken together, are commonly considered to distinguish science from other disciplines. First, the overall goal of science is to obtain knowledge of a specific and strictly limited subject: the material, or physical, universe which is made up of corporeal processes and entities. All of science is limited to phenomena of this sort.

1.2.1.1 Descriptive versus Explanatory There is a subtlety here, though, that must be explored. What do we mean by knowl- edge of the physical universe? Is the knowledge sought explanatory, meant to help us understand why certain phenomena occur? Or is it enough for it to simply be descriptive, successfully revealing nature’s observable features or modeling how they behave without telling us more? According to Einstein “[s]cience can be created only by those who are thoroughly imbued with the aspiration toward truth and understanding...” [49,85].9 The knowl- edge sought is to understand the Universe intimately and fundamentally. To know not simply the path that the Sun will take across the sky, but to understand what dictates its motion. Discussing the type of knowledge he sought, Einstein once explained:

I am not interested in this or that phenomenon, in the spectrum of this or that element. I want to know God’s thoughts, the rest are details [132].10

This is the quest for many scientists. But it is a quest that, from the outset, the wisest knows may be illusory. The reason is that it is based upon the dual assumptions that not only does the behavior of the physical Universe obey strict, fundamental and universal rules, but that we are capable of “seeing” and understanding them. The first assumption seems obvious today, but apriorithere is no scientific principle that compels it to be so. Why should the Universe be composed of orderly laws that determine what shall take place within it? Will those rules evolve or decay over time,

∗ The discussion that follows is not meant to be exhaustive but simply suggestive of some of the major themes. 6 Forensic Metrology or at least as long as something such as time exists? Is it possible that the order we see around us is the result of a chance configuration of the state of the Universe and that other states may manifest wherein such order is absent? At the core of this quest lies a belief, akin to faith although not lacking in empirical support, that, fundamentally, the Universe is of a particular character. The second assumption seems far more precarious. To be sure, we interact with and sense the world around us. But how much are we really equipped to “see” and understand? Remember, we are simply another animal, inhabiting a wet rock, floating through space around what seems to be a rather typical star, in the outskirts of a small galaxy that is barely a speck, in what appears to be, despite the existence of hundreds of billions of galaxies, a mostly vast and empty Universe. Against such a backdrop, almost any claim other than ignorance seems hubristic. That is, of course, until we remember our many great scientific achievements, which include those mentioned in the first section of this chapter. With these in mind, it certainly seems that we are able to “see” and understand the physical world about us. Still, what does this say about the depth of our understanding? Consider quantum mechanics.

1.2.1.2 Example: Quantum Considerations Developed in the early part of the twentieth century to address phenomena that clas- sical physics could not explain, quantum mechanics is one of human kind’s most successful scientific achievements. It governs the behavior of particles such as atoms and electrons; is the foundation for chemistry, describing the rules that hold molecules together; underlies our modern theories of electricity, magnetism, and light and how the nuclei of atoms are held together and how they decay; and even plays a role in our cosmological theories. Because of quantum mechanics we have transistors which make personal computers possible, lasers which are necessary for DVDs and Blu-ray technology, CCDs used in digital cameras, and a host of other technologies that we rely upon every day. Despite its great power, though, are we actually to believe the picture of reality that quantum mechanics paints? Is our universe really made up of tiny entities that exist as a superposition of particle and wave? Many of whose properties do not even exist until observed? That pop into and out of existence throughout space? According to Nobel Laureate Richard Feynman, we can “safely say that nobody understands quantum mechanics” [55].11

1.2.1.3 Knowledge as Description and Model By this Feynman does not mean that we do not understand the rules of quantum mechanics and how to apply them. To the contrary, we understand these things very well. He simply means that we do not understand the physical reality that creates them. The relevance of this is that it shows us that no matter how powerful our scien- tific knowledge is, it may simply be descriptive in nature, successfully revealing the types of observations that can be made, or modeling how an aspect of the Universe behaves, without revealing the what or why of that which lays beneath. Thus, perhaps sometimes science does reveal to us something about the actual why, what or how of Science, Metrology, and the Law 7 physical reality, but there is no requirement for it to do so. As quantum theorist John Von Neumann explained:

The sciences do not try to explain, they hardly even try to interpret, they mainly make models. By a model is meant a mathematical construct which, with the addition of cer- tain verbal interpretations, describes observed phenomena. The justification of such a mathematical construct is solely and precisely that it is expected to work—that is, correctly to describe phenomena from a reasonably wide area [152].12

This understanding is fundamentally important if we wish to understand what knowledge can actually be gained through science. Scientific knowledge is a descrip- tion or model of our experience of the physical world. While it may also reveal the physical reality underlying it, that requires something more, belief.

1.2.1.4 Example: The Ptolemaic Model of the Universe Consider the Ptolemaic model of the Universe relied upon by the ancient Greeks. This description was based on careful observation and measurement of the motion of the planets. Described by Ptolemy in the Almagest, in this model the Cosmos consists of a series of concentric spheres, referred to as deferents, with the Earth stationary at its center. The largest sphere contained the stars while the eight smallest accounted for the known planets, Sun and Moon. Now, the Greeks believed in the principle that each of these extraterrestrial bodies must be confined to uniform circular motion as they traveled in their orbits. To produce the motion of these objects in the sky, each of the deferents rotated about their centers at different rates. In this form, however, the model did not match all of the Greeks’ observations. One of the most troubling incongruities was the phenomenon of retrograde motion. As the Earth passes by other planets in its annual trek around the Sun, those planets appear to briefly circle backward against the background stars before continuing on their journey. Of course this is simply a visual effect, but it seemed real enough to the Greeks. To account for these observations, Ptolemy and his contemporaries made some adjustments to the initially simple model. First, each of the planets was removed from their deferent and attached to small, perfectly circular tracks called epicycles. Each epicycle would then be attached to its deferent and, as the deferent rotated, so to would the epicycle about its own center. Now, each deferent was offset so that the Earth was no longer at its center but at a point called the eccentric. Although the epicycle orbited the Earth as the deferent rotated, it did not do so about the center of the deferent. Instead, its orbit centered on a point referred to as the equant which was located directly across from the eccentric with the deferent’s center bisecting them (see Figure 1.1). This configuration helped the Greeks better account for the more complicated motions of the planets that were actually observed. And, since the epicycles were perfectly circular, it allowed the Greeks to maintain the principle of uniform cir- cular motion in a somewhat modified form. Over time, whenever the model failed to account for astronomical observations, more epicycles would be added so as to maintain the model’s correspondence to the planets’ positions in the evening sky. 8 Forensic Metrology

Deferent Epicycle

Equant Center Earth/eccentric

FIGURE 1.1 Ptolemaic model.

The Ptolemaic model, based upon careful celestial observation, was a great achievement. Some versions continued to provide good approximations of planetary locations even centuries later. But today we know that deferents and epicycles, useful as they may have been, do not actually underlie the motions of the planets. This is a prime example of how our scientific knowledge may describe what we experience of the Universe while not actually revealing the physical reality underlying it. It would seem, then, that the quest for scientific knowledge must be comprised of equal parts curiosity and skepticism. The curiosity to want to understand how the Universe works but the skepticism to question whatever would be forwarded as the answer.

1.2.2 EMPIRICISM Another element distinguishing science from other pursuits is that the evidence relied upon to build our description/model of the physical world must be empirical in nature. That is, such evidence is limited to what can be obtained through observation, mea- surement, and experiment. This is a well-accepted and uncontroversial statement. It is not unfettered reason upon which we base scientific knowledge, but what we collect through our senses, or their extension, from the outside world. No matter what we believe the physical world to be, “[s]cience is based on the prin- ciple that...observation is the ultimate and final judge of the truth” [56].13 Regardless of how brilliant, logical, or beautiful an explanation, it must be discarded if it is con- tradicted by our observations. This is one of the primary creeds of science. Moreover, as an empirical endeavor, science is not beholden to recognized authority or even what we find desirable. Nature adheres to its own natural laws regardless of how they affect us. Systematic observation, measurement, and/or experimentation are the genesis of scientific understanding. Science, Metrology, and the Law 9

1.2.2.1 Information versus Fact But what is it that our observations, measurements, or experiments provide? The obvious answer is that what we obtain are facts about the physical world. This state- ment can be somewhat misleading, though. The term “fact” seems to imply that our empirical activity yields little nuggets of truth that speak for themselves. That each such “fact” has a singular fixed meaning that is a direct reflection of the phenomena explored. And that the outcome of our observation, measurement or experiment, pro- vides an unambiguous reflection of the phenomena of interest. This view is overly simplistic, however. Every observation, every measurement, and every experiment takes place within a physical context that includes the procedures, instruments, and conditions attendant to our empirical endeavor. And every aspect of that context may interact and/or alter the outcome in a manner that is unknown. Thus, it is difficult to maintain that what is obtained during these empirical activities are unambiguous nuggets of truth regarding the phenomenon of interest.

1.2.2.2 Example: Blood Alcohol Measurements Consider the testing of blood to determine its alcohol concentration. These tests are typically performed utilizing gas chromatography to determine what an individual’s alcohol concentration was at the time the blood is drawn. The presumption is that the concentration of alcohol in the sample of blood will be the same when it is tested as when it was drawn. Microbial contamination of a blood sample can occur during a draw, however, and some microbiota can produce additional alcohol in the blood sample via fermenta- tion. Moreover, although a gas chromatograph is capable of providing accurate results concerning the concentration of alcohol in a sample of blood, it does not test for the presence of alcohol-producing microbiota. As a result, we may have no information concerning whether the alcohol present in the sample at the time it was tested could have been produced by microbiota after it had been drawn. Accordingly, we can- not necessarily conclude that the alcohol concentration at the time of the test was the same as when the blood was drawn. The result of the blood test is not an unambiguous reflection of the phenomenon sought to be investigated.

1.2.2.3 Incomplete Information There are no unambiguous nuggets of truth here providing us with the answers to our questions. What we obtain from observation, measurement, or experiment is simply a specific type of experiential information, nothing more. We can never know exactly what that information represents. To be sure we may have certain beliefs as to what lies behind it, but there is no way to physically prove it. This information includes not just the result obtained, but the universe of empirical information we have relevant to the question asked as a whole. And whatever knowledge we build will be subject to the limitations of the information it is based on. Whether it permits the question asked to be adequately addressed is dependent upon the amount, quality, and relevance of the information obtained. 10 Forensic Metrology

The example of the blood test demonstrates this nicely. There, we had informa- tion concerning the result of the test but none concerning the presence of microbes. Thus, to extrapolate from a test result to the concentration of alcohol in the sample at the time it was drawn may be misleading. On the other hand, there might be other information that could help address that question such as whether and how much preservative was in the tube used to collect the blood, whether the sample was refrig- erated after collection and what precautions were taken with respect to the blood draw itself. But what can be learned from the blood test is dependent upon the universe of information we have concerning the collection and testing of the blood sample. In the same way that our understanding of physical reality may be of a more super- ficial (descriptive) kind, the information we obtain may concern only the surface features of the phenomena of interest and lack significant content concerning what lies deeper as well. This may result because our procedures are not intended to obtain certain types of information, because our instruments are only capable of exploring a particular aspect of the phenomena of interest, because certain conditions cannot be controlled for or any number of other possibilities. Thus, while our information may reflect the core of the phenomena of interest, because it is never perfect or complete, we can never know whether it actually does. The claim that it does requires something more, belief.

1.2.3 RECAP Our description of science so far may be surprising to some. Despite our aspirations, any claim to understanding the actual why, what, or how of physical reality or basing this knowledge on nuggets of factual truth requires something more usually attributed to other endeavors: our belief that these things are true. Instead, our scientific claims are of a more limited nature. Our scientific knowledge is a description/model of our experience of the physical world, and that knowledge is based upon incomplete and imperfect information obtained by empirical means. Either one or both of these may reveal the true nature of the phenomena giving rise to them, but this is something that cannot be known, only believed or disbelieved.

1.2.4 HALLMARKS OF SCIENCE Still this does not exhaust the elements that characterize what science is. Some of these attach to the conclusions and ideas science gives rise to, while others concern the activities engaged in to generate them. Consider the following carefully as this is an area where debates commonly break out.

1.2.4.1 Falsifiability and Testability Some have claimed that the hallmark of science is the falsifiability, refutability, or testability of its claims [124].14 From this perspective, no matter how a claim or result is arrived at, unless it is susceptible to being refuted, it does not constitute science. But what do we mean by falsifiable, refutable, or testable? Can any experiment or Science, Metrology, and the Law 11 series of experiments ever completely settle a scientific question? Do we ever really have complete information or knowledge about any circumstance? Nobel Laureate Richard Feynman once wrote that “[i]t is scientific only to say what is more likely and what is less likely, and not to be proving all the time the possible and impossible” [55].15 In other words, science cannot tell us what is or is not, only what is more or less likely based on the information we have. The rea- son is that our knowledge of the physical world is never perfect or complete. Hence, no matter how confident we are in a given scientific proposition, there will always remain at least some of the unknown from which a contrary explanation could arise. Accordingly, whether we are aware of it or not, attendant to even the most successful scientific claims is a degree of doubt and to even the most woeful failures a spec of hope. Doubt may be minimized, but it can never be eliminated. Thus, strictly speak- ing, falsification and refutability are matters of degree, even though often treated as settled fact.

1.2.4.2 Puzzle Solving Another proclaimed hallmark of science is as a puzzle-solving activity that takes place against a background of accepted beliefs and rules (accepted scientific laws and prin- ciples), and for which there are shared criteria for determining when a puzzle has been solved [101].16 Instead of trying to disprove things all the time, the goal is to affirmatively add to our knowledge by successfully solving the questions we choose. In this context, the background of accepted beliefs and rules (accepted scientific laws and principles) and the shared criteria for determining when a puzzle has been solved are crucial.

1.2.4.3 Example: Puzzle Solving in Forensic Toxicology Consider the bench toxicologist whose job is to test blood for the presence of cer- tain predetermined substances. The toxicologist is presented with a simple puzzle: to determine the concentration of a particular substance in the sample of blood. The puzzle is simple because the steps in solving it are not only likely to be well under- stood but to be explicitly set forth in the laboratory’s standard operating procedures (SOP). The SOP governing the test will be similar to a detailed checklist or recipe setting forth the steps to be taken.

(1) Prepare the samples as prescribed by laboratory SOP; (2) Prepare testing instrument (e.g., a gas chromatograph) as prescribed by laboratory SOP; (3) Load samples into test instrument as prescribed by laboratory SOP; (4) Make sure all settings are as prescribed by laboratory SOP; (4) Press the start button; (5) Wait for the results to be produced; (6) Check and interpret results as prescribed by laboratory SOP; (7) Report results as prescribed by laboratory SOP; (8) If a problem occurs, address it as prescribed by lab- oratory SOP; (9) If problem not solved by means prescribed by laboratory SOP, report it and discontinue testing.

Does the following of such a checklist constitute science? Although care must be exercised so that we can be confident in the accuracy of any result, little indepen- dent thought seems to be required. Could not the same checklist be followed by a 12 Forensic Metrology reasonably intelligent individual, trained simply to perform the required steps in the required manner, with little if any scientific understanding at all? It seems little differ- ent in nature from a lifeguard using available technology to test the level of chemicals in the pool he is watching over? And this author has yet to hear a lifeguard be accused of performing science while on the clock! But, perhaps our focus is too narrow. It is not the individual performance of each test standing alone that constitutes science. Instead, maybe it is that activity consid- ered as a component of an overarching whole that includes the scientific principles relied upon coupled with the development of the testing instrument, procedures and standard interpretations as the first act that constitutes science. This brings to the fore the reliance upon accepted beliefs and rules (accepted scientific laws and principles) and shared criteria for determining when a puzzle has been solved.

1.2.4.4 Predicting Novel Phenomena Yet another characteristic often considered a hallmark of science is the ability to predict novel phenomena that can be confirmed by observation or experimentation [104].17 Every theory (at least so far) will have its limitations or areas where, it may appear to fail or be refuted. Not every theory, however, will be able to forecast novel phenomena that can be confirmed. Where a theory can predict such phenomena it is believed to encompass something more fundamental about the universe. It is not sim- ply a post hoc portrait of what has already been glimpsed but a tool revealing what is yet to be learned. The prediction of something new that is confirmed through observation or experi- mentation offers particularly strong support for a scientific claim. Although scientists and mathematicians are quite skilled at building models to account for what is already known, it is quite another to forecast what is yet to be discovered. When a theory can do this, it seems more than the simple addition of epicycles to account for each new observation. Instead, it is a hint that we may have gone beyond simple model building and touched on something fundamental with respect to the physical universe.

1.2.4.5 Example: Prediction of a New Planet Newton’s law of gravity describes the attractive force between two bodies arising from their masses. Published in 1687, it can be simply expressed as

G · m · m F = 1 2 (1.1) g d2

This tells us that the gravitational force between any two bodies with mass is pro- portional to the product of those masses and inversely proportional to the square of the distance between them. This simple mathematical model not only accounted for the motions of falling objects here on Earth, but, amazingly, the motions of the known planets as they orbited the Sun. In March of 1781, however, the planet Uranus was discovered. Newton’s Law was utilized to determine the planet’s orbit but sub- sequent observations were not in agreement with its predictions. Some argued that Science, Metrology, and the Law 13 this contradiction was a refutation of the Law’s claimed universality. And it could have been. Using the same model, however, scientists showed that discrepancies between pre- diction and observation would go away if there were another planet beyond Uranus also exerting a gravitational pull on it. Scientists went to work trying to calculate where the hypothetical planet must be. Relying upon these predictions, in September of 1846, two astronomers aimed their telescope at the designated location in the sky and discovered the planet Neptune. Hence, what appeared to be at least a partial refu- tation of Newton’s Law of Gravity, at first, turned out to be the key to predicting the existence of an unknown planet. A similar process later led to the discovery of Pluto as well.

1.2.4.6 The Scientific Method Regardless of whether one deems falsifiability and testability, puzzle solving or forecasting the ultimate hallmark of scientific activity, there is nothing inherently incompatible about these different activities. In their less dogmatic forms, each seems to capture some aspect of the scientific enterprise. Like the three blind men who, upon touching different parts of an elephant, concluded that they were confronted with very different entities, these descriptions of science seem to convey distinct characteristics of a greater whole. Which aspect one focuses on may simply be a function of what the question we wish to address is. Moreover, each would seem to fit comfortably into an edifice that almost every high school student has heard of: the scientific method. Isaac Newton described the scientific method as follows:

Scientific method refers to the body of techniques for investigating phenomena, acquir- ing new knowledge, or correcting and integrating previous knowledge. It is based on gathering observable, empirical and measurable evidence subject to specific principles of reasoning [118].18

This definition touches upon many of the elements already discussed. With minor variations, the scientific method is typically taught as containing the following steps:

• Start out with some background description and information about the physical world based on prior observation and experience. • Formulate a question about an aspect of the physical world. • Develop a hypothesis predicting an answer to the question. • Design an experiment to test the hypothesis. • Conduct the experiment to test the hypothesis. • Draw a conclusion about the hypothesis based upon the result. • Share methods and results so that others can examine and/or duplicate your experiment.

The first and last steps of this process are sometimes left out. The first step simply recognizes part of the overall context (discussed above) within which our observation, measurement, or experiment takes place and constitutes part of our Universe of infor- mation concerning it. The last step is critical for several reasons, not the least of which 14 Forensic Metrology is establishing the independent repeatability of the results obtained. If others repeat the experiment and obtain the same result, then this can be reported as the discovery of a common/shared/objective regularity in the phenomena of interest. Such observed regularities form the basis of our models of how the physical Universe behaves. Despite its oft-quoted precepts, however, this is not a prescription that scientists are compelled to follow. These steps are really just a heuristic describing generalized patterns of activity seen when the work scientists engage in is observed. Scientists are not bound by them. As explained by Nobel Laureate Percy Bridgman, to the scientist:

...the essence of the situation is that he is not consciously following any prescribed course of action, but feels complete freedom to utilize any method or device whatever which in the particular situation before him seems likely to yield the correct answer. In his attack on his specific problem he suffers no inhibitions of precedent or authority, but is completely free to adopt any course that his ingenuity is capable of suggesting to him [19].19

Even with the freedom Bridgman describes, however, the norms are what has been described. And it is by engaging in the activities giving rise to these norms that has led to the great successes enjoyed by science. Although deviations from the norm may be called for and even improve the scientific enterprise on occasion, the soundness of new methods and/or approaches must be established before they are relied upon as being scientific.

1.2.4.7 Defining Terms, Concepts, and Phenomena Often overlooked in discussions about science, but nonetheless critical to any scien- tific enterprise, is the complete and explicit definition of any term or concept utilized as well as any phenomena studied. All professions have their own technical terminol- ogy that must be understood in order to engage in them. The law is a prime example. The ninth edition of Black’s Law Dictionary has over 45,000 terms defined, includ- ing words or phrases such as malum prohibitum, adverse possession, consideration, privity, and the like. These are tools of the lawyer’s trade just as is the technical terminology relied upon by scientists in their distinct fields. What is required in the scientific context goes beyond this, however. Remem- ber that whatever phenomena it is that we are studying does not come out and identify itself for us. Before any meaningful conclusions can be drawn about a phe- nomenon of interest, we must rigorously define exactly what we consider to constitute that phenomenon. This definition may be provisional, replaced as soon as a better understanding of the phenomenon is acquired. But unless we can clearly and unam- biguously identify the phenomenon under investigation in the first place, to what can we attribute our results and the interpretations we ascribe to them? Moreover, to what will others attribute them? The failure to carefully define the very subject of our inquiry introduces a fundamental ambiguity that may prevent any sound conclusion from being reached. Science, Metrology, and the Law 15

1.2.4.8 Example: What Is an Analogue? Consider a statute that prohibits a drug and any of its analogues. A substance is sent to a forensic chemistry lab for identification to see if it falls within this prohibition. The legislation clearly defines the prohibited drug by its chemical structure and makeup so that its identification by chemists is straightforward. The term analogue, on the other hand, is given its ordinary dictionary definition as being a substance that is structurally similar to the one prohibited but differing slightly in composition. To legislators and laypeople, this definition may seem quite clear and easily applied. To the chemists charged with determining whether a given substance consti- tutes an analogue, however, it is a different story. The phrases “structurally similar” and “differing slightly” are not scientific terms and do not tell the chemist what cri- teria they encompass, leaving the scientific enquiry to be engaged in under-defined. Although science yields the physical makeup of the substance in question, whether it constitutes an analogue is not a scientific determination. It is simply a matter of opin- ion. Equally skilled and competent scientists might disagree on the meanings of these phrases and hence about whether the substance in question constitutes an analogue. Science requires strict and precise definitions. In particular, the properties, char- acteristics or criteria necessary to identify or distinguish the phenomena of interest must be explicitly and specifically given. Failure to do so leads to ambiguity which short circuits the acquisition of scientific knowledge.

1.2.5 SPECIFIC PRINCIPLES OF REASONING:THE INFERENTIAL PROCESS Returning to Newton’s description of the scientific method for a moment, we see that before any knowledge can be gained, the information obtained must be “subject to specific principles of reasoning.” Given the empirical nature of science and that observation, not human reason, is the final judge of truth, it might seem odd to some that Newton would include such prominent mention of human reason in his brief description of the scientific method. After all, aren’t things such as principles and rules of reasoning the purview of philosophical logic rather than science? Many naively believe that science, particularly that performed on a routine basis, is largely a mechanical process whereby a test, measurement or experiment is performed and the result provides a self-evident answer to the question asked. As discussed above, this is not true. A result is simply one piece of information to be considered. To be able to ascribe meaning to it, we must consider it in context with the universe of available information relevant to the observation, measurement, or experiment as a whole. This will include information about the procedure used, the instruments employed, and the conditions under which the observations were made. But even taken together, this is still just a lump of information. Without more, our result could still mean anything. What we need is some way of extrapolating from this information to the conclusions that are supported by our result. The tool that allows us to transform information into knowledge is reasoned infer- ence. Inference is the process of reasoning from a set of evidence to a conclusion 16 Forensic Metrology believed to be supported by that evidence. A set of rules defining what consti- tutes valid reasoning facilitates arriving at sound conclusions. If there are such rules governing the process of scientific reasoning, though, where do they come from?

1.2.5.1 Rules of Inference Reflecting back over the discussion thus far, we have already established a few of what might be considered primitive inferential rules:

• The only kind of evidence/information that can help us understand physical reality is that which has been empirically obtained. • We cannot know what is or is not, only what is more or less likely based on the information we have. • Any belief/knowledge that is contradicted by observation is deemed to be less likely. • Successful prediction of novel phenomena makes belief/knowledge it is based on more likely. • Duplication of empirical result makes correctness of result more likely. • Duplication of empirical result by independent source makes correctness of result more likely than if it is only confirmed by original source.

These are not written down like some sort of checklist that a scientist must follow when analyzing an empirical result. They are simply examples of the type of informal rules of inference scientists typically apply. And though in our age of science they may seem simple and obvious, they were not always so considered. Plato, one of the great minds of ancient Greece, taught that empirical information could not be trusted. Instead, he argued that our Universe could not only be perfectly understood through reason alone, but that, that was the only way one could understand it. Against this backdrop, even the simple rules listed above may prove quite powerful. An inferential rule commonly employed is simplicity: if two descriptions describe a phenomenon equally well, then the simpler description is favored. This is what biologist E.O. Wilson termed the principle of economy.

Scientists attempt to abstract the information into the form that is both simplest and aes- thetically most pleasing—the combination called elegance—while yielding the largest amount of information with the least amount of effort [164].20

For example, by the time of the sixteenth century the Ptolemaic model of the Solar System had become quite complicated, festooned with epicycle upon epicycle. Then, in 1543, Nicholas Copernicus published his heliocentric model which placed the Sun at the center of the Solar System with the planets, including Earth, orbiting about it and the moon orbiting about the Earth. Removing the Earth from the center of the Universe was a radical idea at the time, but this model predicted the motions of the planets at least as well as Ptolemy’s had. And, although Copernicus maintained the idea of uniformly circular motion which still required epicycles to account for the motions of the planets, there were far fewer of these ad hoc encumbrances. As a Science, Metrology, and the Law 17 result, the new heliocentric model was far simpler than the Ptolemaic model it soon replaced. Our bag of inferential tools contains more than these simple heuristics, though. Every observation, measurement, and experiment takes place against a background of accepted scientific laws and principles which provide a formal framework of inferential rules to work with. Referring to physical laws and principles as rules of inference likely seems odd to most. But recall that these are simply descriptions of the regularities and relationships between phenomena that we observe in nature. And well-established regularities and relationships happen to make excellent inferential tools.

1.2.5.2 Example: Chemistry and Rules of Inference Consider the principles of chemistry. Amongst other things, they describe the chem- ical changes that occur when different substances are mixed together. Thus, if we are given a substance and told that it is the product of a chemical reaction, we may subject this information to standard chemical principles, acting as our rules of inference, to infer what the substances combined to form it were. As an example, assume a solution containing sodium hydroxide, a common base, is poured into a beaker containing an unknown liquid. The solution in the beaker is later found to have evaporated but a small amount of a solid substance has been left behind. After examination, the substance is found to be a salt, sodium sulfate. A well- known principle of chemistry tells us that when an acid and a base react, the cation of the base and the anion of the acid combine to form a salt. Subjecting our information to this principle allows us to infer that the unknown liquid may have been an acid. The same principles tell us that when mixed with sodium hydroxide, different acids react to produce different salts. When the cation of sodium hydroxide combines with the anion of sulfuric acid, the resulting salt is sodium sulfate. Subjecting our information to this principle allows us to infer that the unknown acid may be sulfuric acid. The concept of a physical principle acting as an inferential rule is that simple.

1.2.5.3 Hierarchy of Inferential Rules As you might guess, not all inferential rules are on the same footing. For exam- ple, physical laws that are firmly established will be considered more trustworthy for inferential purposes than those still in their developmental stages. This seems obvious. But some laws and principles are favored because the manner in which they are expressed bestows far greater inferential power. More to the point, mathematical descriptions/models are generally favored over qualitative ones. Good mathematical models make explicit everything that is being considered and trim away inexactitudes that may be introduced by qualitative concepts. Moreover, they permit precise pre- dictions to be made about what will be observed under a variety of circumstances that qualitative descriptions generally cannot. This not only makes such models more open to being tested but, once they have been confirmed, far more useful in applying our knowledge for both intellectual and practical purposes. In fact, absent mathemat- ical models, most, if not all, of the scientific achievements discussed in the opening paragraph would not have been possible. 18 Forensic Metrology

The strength of such models can be seen by recalling the example above con- cerning Newton’s Law of Gravity and the discovery of Neptune. First, the Newtonian model yielded quantitative predictions that permitted the discrepancies between it and the orbit of Uranus to be easily and precisely determined. Feeding this information back into the mathematical machinery of the model, scientists were then able to infer that, if the description of gravity were correct, there must be another planet orbiting the Sun beyond Uranus waiting to be discovered. And not only was the inference correct, leading to the discovery of Neptune right where the model had predicted, but it reaffirmed the Newtonian description of gravity and, hence, the inferential rule relied upon.

1.2.5.4 Creation and Destruction of Inferential Rules This raises another point. What if the prediction made by Newton’s model concerning the existence of a new planet had been incorrect? Just as with the scientific method discussed above, none of our rules of inference is absolute. There may be times when two such rules are in conflict and one must be chosen over the other. Or there may be instances when a completely novel phenomenon can only be understood by the introduction of a new rule. There may even be times when what was once considered a physical law, and hence one of our more concrete inferential rules, must be discarded altogether. Nothing within science is ever finally safe from the possibility of being discarded due to future observations or better understanding and the inferential rules we rely upon are no different.

1.2.6 EPISTEMOLOGICAL ROBUSTNESS OF SCIENTIFIC CONCLUSIONS Finally, we return to one of the primitive inferential heuristics listed above: We cannot know what is or is not, only what is more or less likely based on the information we have. This is absolutely fundamental to scientific reasoning. One of the remarkable aspects of science, however, is the ability of scientists to rigorously characterize the relative strength of their inferences in quantitative terms. This includes the ability to determine the limitations associated with the type, amount, and/or quality of informa- tion obtained from an observation, measurement, or experiment and the conclusions that can be drawn from it. A mature science includes the tools that permit scientists to quantify in an unambiguous manner how much confidence one can have in their conclusions given the information and inferences they are based on. Or, if you rather, to unambiguously quantify the limitations of those conclusions. The quantitative characterization of the degree of confidence one can have in a particular conclusion is typically expressed as an estimate of the relative likelihood of that conclusion compared to others that could be drawn. This provides a measure of the epistemological robustness of scientific inferences representing the degree to which our scientific knowledge is believed to be incomplete. In essence, this allows us to convey what conclusions our current information and the inferential techniques employed may support and how strongly. Absent such measures, one is left to guess how justified a belief in a particular conclusion is. Science, Metrology, and the Law 19

The tools relied upon to determine the level of confidence one can have in the conclusions arrived at include measures of uncertainty and error. For example, “[n]umerical data reported in a scientific paper include not just a single value (point estimate) but also a range of plausible values (e.g., a confidence interval, or interval of uncertainty)” accompanied by an estimate of their likelihood [28].21 This is done to ensure that the conclusions drawn are actually supported by the results obtained.

1.2.6.1 Example: Error Analysis and the Discovery of Planetary Laws One of the first scientists to understand the importance of determining these limita- tions was the sixteenth century Danish astronomer, Tycho Brahe [109].22 Although the heliocentric model of Copernicus was an improvement over the old Ptolemaic sys- tem in terms of simplicity, its predictions were often not much better. Brahe sought to develop an improved model based upon very accurate and precise measurements of planetary motions. To do so, he developed new instruments and techniques to mea- sure the positions of celestial bodies of interest. Just as significantly, he is also the first scientist known to have determined both the systematic and random errors asso- ciated with his measurements. Beginning in the late 1570s, he spent over 20 years measuring planetary positions far more accurately and precisely than had ever been done before. Unfortunately, Brahe died in 1601 before he finished his work leaving that task to his assistant Johannes Kepler. Retaining the accepted notion that celestial bodies must engage in uniform circular motion, Kepler went about the task of trying to fit a model of planetary motion about the Sun to Brahe’s observations. Despite his greatest efforts, he could not get a model to fit these observations with an error of better than 8 min of arc. The problem with this is that Brahe’s observations were precise to within 2 min of arc, meaning that the discrepancy between Brahe’s observations and Kepler’s models amounted to 6 min of arc. Now, there are 360◦ in a circle and a minute of arc is 1/60 of one degree about a circle (see Figure 1.2). That means that 6 min of arc constitute only 1/3600 of the angular rotation about a circle! Nonetheless, according to Kepler, “[b]ecause these 8 minutes of arc could not be ignored, they alone have led to a total reformation of astronomy.”23 What a mere discrepancy of 6 min of arc eventually led to were Kepler’s three laws of planetary motion.

First Law: Planets orbit the Sun in elliptical orbits with the Sun at one focus. Second Law: An imaginary line from the Sun to an orbiting planet sweeps over equal areas in equal time intervals. Third Law: The ratio of the squares of the orbital periods of two planets is equal P2 R3 1 = 1 to the cubes of their semimajor axes 2 3 . P2 R2

It is now over 400 years later and these three laws are still relied upon! Yet Kepler would not have stumbled upon them unless Brahe had not only made quan- titative measurements, but had also mathematically characterized the limitations of the information he had obtained and, hence, the inferences it permitted. 20 Forensic Metrology

100° 80° 120° 60°

140° 40°

160° 20°

180° 0°

200° 340°

220° 320°

240° 300° 260° 280°

◦ FIGURE 1.2 Circle = 360 .

1.2.7 A WORKING DEFINITION OF SCIENCE So then, what is science? Simply stated, science focuses on the quest for, and acquisi- tion of, knowledge of the physical world as we experience it through empirical means. It requires the systematic collection of empirical information followed by an assess- ment of the strengths and weaknesses of that information. Where the information permits, relationships are discovered and inferences are made creating knowledge in the form of a description or model of what has been or will be observed. Finally, based on our information, the significance of that knowledge is evaluated through a rigorous determination of its limits, that is, the degree of certainty associated with it. Ontologically, although science must be empirically based, its true subject mat- ter is simply a specific type of experiential information and the relationships we infer from it that constitute our descriptions of the physical universe. Although we may have certain beliefs as to what lies behind our information and descrip- tions, there is no way to physically prove it. In a sense, our descriptions simply model information–inference networks that correspond to empirical experience. Said another way, our descriptions map the relationships/patterns perceived within our collection of empirically obtained information. Epistemologically,∗ even strictly within the confines of information and descrip- tion, science still does not deal in absolutes. Seldom will our information be complete and perfect, and even it were, it is unclear how we would know. Our scientific knowl- edge and inferences are always somewhat fuzzy. That is, the information obtained, relationships perceived and the conclusions drawn from observation, measurement,

∗ Epistemology is the study of knowledge and justified belief. Its focus is the nature and dynamics of knowledge: what knowledge is, how it is created, and what its limitations are. Science, Metrology, and the Law 21

TABLE 1.1 Epistemological Framework of Science

Information - Prior knowledge What weknow/believeabout the phenomena of interest prior to measurement, observation, experiment (preexisting observation, models,etc.) -Empirical in nature Obtained via measurement, observation, experiment - Information input The information delivered to the measurement, observation, experiment (experimental set-up, instrument settings, etc.) - Information output Information received frommeasurement, observation experiment results, and other observations

Inference - Transformation of information into knowledge This is an activeprocess of knowledge creation - Rule-based reasoning constrains set of conclusions Physical laws, falsifiability, predictivepower, etc.

Knowledge - Consists of beliefs concerning conclusion(s) arrived at Can never know whether conclusion(s)is true, can only believe based upon information and inferences -Justified belief Determination of relative likelihood of conclusionssupported provides measure of epistemological robustness of each and ourknowledgeas a whole

and experimentation are necessarily soft edged to some extent, always containing a modicum of uncertainty. Although our degree of belief in a given description or piece of information may be high, science can never absolutely prove it. Science, then, does not tell us what is or is not true. Rather, through the “scientific method,” it represents a structured process by which empirical information can be collected and processed to create knowledge, in the form of beliefs concerning the physical universe, that can be justified in a quantitatively rigorous manner providing a measure of the epistemological robustness of the conclusions they support. This leads to a working definition of science that we will rely upon throughout the rest of the text. It is consistent with everything discussed thus far and does away with resort to needless and unprovable assumptions concerning any relationship to the fundamental nature of physical phenomena. Rather, it is based on the idea that 22 Forensic Metrology the methodology of science is simply an applied epistemological framework based on empiricism that permits us to determine what conclusions about the physical Uni- verse are supported by the information collected and inferential rules relied upon (see Table 1.1). It is expressed as follows to give us a concise definition to refer to as we go forward. Scientific knowledge consists of descriptions/models of physical phenomena that are inferred from experiential information obtained by empirical methods and, which, are inherently uncertain to a degree that can be quantitatively determined and expressed.

Revealed Truth, absolute and known, is not the domain of science. Rather, it is relative inference. From observation and information, to the relationships alive therein, to vary- ing degrees of certitude never complete. That’s the promise of science ...andthebestit can do.

1.3 FORENSIC SCIENCE AND THE LAW This is not a textbook about science generally, though. Rather, it is a textbook about forensic science. Unlike other sciences, forensic science is specifically developed for the investigation of crimes and intended to be relied upon in legal proceedings to determine guilt or innocence. As a result, it may be subject to legal constraints that other sciences are free of. So, while everything discussed so far may be correct for science generally, the question that arises is whether any of it applies to the forensic sciences in particular.

1.3.1 SCIENCE IN THE COURTROOM Owing to the increasing reliance upon scientific evidence in the courtroom, jurists have also had to address the question of what constitutes science. The approach, however, is not one of identifying science for the sake of science, but to establish cri- teria for when evidence or testimony purported to be scientific will be accepted and admitted as such. This is critical given the enormous persuasive power that evidence claimed to be scientific carries.24 The admissibility of scientific evidence in the Federal Courts is governed by Federal Evidentiary Rule 702. It states that25:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: a. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; b. The testimony is based on sufficient facts or data; c. The testimony is the product of reliable principles and methods; and d. The expert has reliably applied the principles and methods to the facts of the case. Science, Metrology, and the Law 23

The U.S. Supreme Court interpreted the Rule in Daubert to require that when evidence is offered as being scientific in nature, the subject of the testimony elicited must in fact consist of “scientific ... knowledge.”26 It explained that:

...in order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropri- ate validation-i.e., “good grounds,” based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability.27

Whether evidence is scientific under the Rule hinges on a determination of whether the principles and methods leading to it are scientifically valid. This determination is based upon consideration of several factors including28:

• Whether the principles and methods can be and have been tested; • Whether the principles and methods have been subject to peer review and publication; • The known or potential rate of error of the methods employed; • The existence and maintenance of standards governing the method’s use; and • Whether the principles and methods are generally accepted within the scientific community.

The last factor in the Daubert analysis, general acceptability, comes from the pre- vious standard enunciated 70 years earlier in Frye v. United States.29 Although only one component of the Daubert analysis, it still stands as the standard for admissibility of scientific evidence in a minority of states. Nonetheless, even in those minor- ity states the principles enunciated in Daubert have begun to inform the analysis. Whether a majority or minority state, though, the factors considered are intended to ensure that evidence claimed to be scientific is in fact “ground[ed] in the methods and procedures of science” generally.30

1.3.2 FORENSIC SCIENCE AS SCIENCE Now, the forensic sciences did not, by and large, sprout from the same academic envi- ronment and motivations as the “pure” sciences. Instead, they grew from the creative genius of law enforcement and those assisting them in trying to solve crimes. Thus, they are rooted in a different culture with different goals. The goal is not to know the physical world better for its own sake. Instead, it is to understand and determine how science can be focused on physical evidence associated with suspected criminal activity so as to determine whether a crime has been committed and/or who commit- ted it. Although new discoveries may be made and new fields created, however, it is all strictly for the aforementioned purpose. Nonetheless, despite its distinct origins, forensic science is not much unlike many other applied sciences that share similar characteristics. What needs to be understood, though, is that regardless of context, the physical world behaves as it does without concern for the purpose of our activities. Gravity 24 Forensic Metrology behaves the same whether we are in a physics, chemistry, biology, or forensics lab, or even at the scene of a crime. And so it is for all of nature’s forces and laws. And forensic science is no more exempt from the principles discussed above than any other science. If we are going to engage in an activity that we want to be scientific in nature, then it must satisfy those characteristics which define science. Failure to do so does not mean that the activity is not useful or worthy of practice. It does, however, mean that it is not science. The cases above concluded the exact same thing with respect to what constitutes scientific evidence in the courtroom. And this applies directly to the forensic sciences.

1.4 METROLOGY: THE SCIENCE OF MEASUREMENT Generally speaking, activities aimed at gathering empirical information can be grouped into two categories based upon the type of information sought. An observa- tion is meant to collect qualitative information concerning an entity or phenomenon. Examples of qualitative activities include the identification of a substance through chemical means or the biological classification of a newly discovered animal. The aim of measurement, on the other hand, is to determine the numerical value attributable to some property of a physical entity or phenomenon. These include determining the temperature of a substance utilizing a thermometer or the weight of an animal utilizing a scale. The focus of this text is measurement.

1.4.1 MEASUREMENT Reliance upon measurement goes back to at least 3000 B.C. when the Egyptians employed it in the construction of the pyramids. And its importance as a tool in modern society is hard to overstate:

Millions of analytical measurements are made every day in thousands of laboratories around the world. There are innumerable reasons for making these measurements, for example: as a way of valuing goods for trade purposes; supporting healthcare; checking the quality of drinking water; analyzing the elemental composition of an alloy to confirm its suitability for use in aircraft construction; forensic analysis of body fluids in criminal investigations. Virtually every aspect of society is supported in some way by analytical measurement [53].31

Some consider measurement a necessary aspect of science. William Thompson, later known as Lord Kelvin and after whom the absolute temperature scale is named, summed it up this way:

In physical science, the first essential step in the direction of learning any subject is to find principles of numerical reckoning and practicable methods for measuring some quality connected with it. I often say that when you can measure what you are speaking about, and express it in numbers, you know something about it; but when you cannot measure it, when you cannot express it in numbers, your knowledge is of a meager and unsatisfactory kind; it may be the beginning of knowledge, but you have scarcely in your thoughts advanced to the state of science, whatever the matter may be.32 Science, Metrology, and the Law 25

Measurement is favored over observation because it tends to generate results with higher and more structured information content. One advantage of measure- ment, as explained by biologist E.O. Wilson, is that “[i]f something can be properly measured, using universally accepted scales, generalizations about it are rendered unambiguous” [164].33 Consider the phases of water. Even absent some way to measure the temperature of water, we can determine that when water gets cold enough it freezes, when it gets hot enough it turns into steam and in between it exists as a liquid. Although this may be useful to some extent, the information contained by the generalities “cold enough” and “hot enough” is quite limited. In fact, “cold enough” and “hot enough” may mean different things in different contexts. For instance, depending upon the ambient pres- sure, cold will have to be a little colder in some contexts to produce ice and hot hotter to produce steam. If we can measure the temperatures and corresponding pressures at which these phase shifts occur, though, not only can we clearly communicate what “cold enough” and “hot enough” mean in these different environments, but we can build quantitative models that clearly describe these phenomena.

1.4.2 COMPONENTS OF MEASUREMENT There are several components that must be considered whenever performing or evalu- ating a measurement. Absent attention to each, the reliability of any conclusions based on a measured result is drawn into question. We will consider each briefly here.

1.4.2.1 The Quantity Intended to Be Measured Measurement is the experimental process whereby one seeks to determine the quan- titative value attributable to some physical or phenomenological quantity. Common quantities include things such as length, time, and weight. The quantity of interest, that is, “the quantity intended to be measured,” is referred to as the measurand.34 Thus, if we wish to determine how heavy an object is by measuring it, the weight of the object is the measurand. Before any measurement can be performed, the measurand must be clearly identified.

1.4.2.2 An Exercise in Comparison All measurement boils down to comparison. First, we identify the quantity of interest, our measurand. Then we choose a physical reference that is the same kind of quantity as our measurand but whose value is already known. The two quantities are then compared and the measurand’s value is given in terms relative to the value of the reference used. For example, if our measurand is the length of a steel rod, then the physical com- parator might be a ruler of known length. To measure the length of the steel rod, we simply lay it side by side to our ruler and compare the two objects. The length of our rod can then be reported as the multiple of rulers that can be laid end to end without exceeding the rod’s length. Consider, for example, Figure 1.3. There, we can report the rod’s length as 2.4 rulers. 26 Forensic Metrology

Ruler Ruler Ruler 1++ 1 0.4

FIGURE 1.3 Measuring length with ruler.

1.4.2.3 Universally Accepted Scales A problem occurs, however, if we try to report the result of our measurement to some- one unfamiliar with our ruler. How long is 2.4 rulers? It depends on the length of the rulers being used. These could be 12 inch rulers, meter sticks, or something else alto- gether. What if someone else is provided the same rod, and comes up with a value of 4.8 rulers (see Figure 1.4)? Who is wrong? The answer is that neither is necessarily wrong and, in fact, both may be right. The real question is, are they using the same ruler? If Lab B is utilizing a ruler that is half the length of the ruler being utilized by Lab A, then the reported results are in complete agreement despite the apparent discrepancy. Therein lays the importance placed on the use of “universally accepted scales” indicated by E.O. Wilson above. By relying upon universally accepted scales, in this case a shared ruler, statements about the rod’s length are rendered unambiguous. That is, everybody can understand precisely what the reported measurement refers to and means. This highlights the role of a system of uniform weights and measures in the measurement process.

1.4.2.4 How to Measure Even within a system of common weights and measures, there are many different methods of measuring. Some are as simple as using a common ruler while others are as sophisticated as relying upon the oscillatory frequency of a cesium atom. For example, if we are trying to measure our weight in the morning, then the measurement process we engage in is weighing and we will likely utilize a typical bathroom scale. The sophistication of the measurement process will always depend upon the use to which the measurement will be put. No matter how simple or sophisticated, though, to be scientifically acceptable it must be demonstrated that the method chosen can actually measure what it is being utilized to measure. The process of determining

Lab A Lab B

2.4 4.8 rulers rulers

FIGURE 1.4 Who is wrong? Science, Metrology, and the Law 27 whether a particular method is capable of measuring what it is intended to and what its limitations in doing so are is known as method validation.

1.4.2.5 Performing the Measurement Even a well-identified measurand, established system of weight and measures and validated measurement method will do little good if the measurement is poorly exe- cuted. To many this is obvious and so much focus is placed on the actual performance of the measurement itself. Remember, though, that the goal of our measurement is to collect information from which a reliable inference can be made. And every measure- ment takes place within a physical context that includes the procedures, instruments, and conditions attendant to it and which may impact the result in a multitude of ways. Reliable inference requires as complete a set of information as is possible concern- ing the whole context. Accordingly, the measurement system must be thought of as including all of these aspects and, to be properly executed, careful attention must be paid to each. This means that it is not enough to simply carry out the measurement itself cor- rectly. Any measuring instruments utilized must be properly maintained and prepared for use. This would include proper calibration of instruments. Care must be taken to account for any factors that may impact our result. For example, environmental factors such as temperature, pressure or even, in some cases, vibrations caused by passing traffic.∗ Attention must be given to the entirety of the physical context within which a measurement takes place. This requires a lab to engage in Good Measurement Practices.

1.4.2.6 Conclusions Supported A measured result can be properly interpreted only in the context of the entire measurement process, including each of the components discussed so far. Absent consideration of the process as a whole, a result is little more than a number whose meaning is vague at best. Even when taken as a whole, though, we can still never know what the true quantity value of a measurand is. The information obtained from measurement does not lead to inferences that are absolutely certain. The best one can do is to determine what values are more or less likely based on the information we have. But it is not the measurand’s true quantity value that is fuzzy. It is the inferences that we can make about it based on the information we have that are fuzzy. Con- sider, for example, weighing yourself with a bathroom scale. Everybody knows that bathroom scales are not perfect. When you step on a scale in the morning before heading off to work, the result reported by it may overstate, understate, or pinpoint your weight. But you simply cannot know which of the three alternatives describes the value reported by your scale. Thus, there is some doubt concerning the value reported. You definitely have a well-defined weight, though, so that is not in doubt.

∗ Vibrations caused by traffic can be problematic when using instruments such as atomic force micro- scopes. 28 Forensic Metrology

What is in doubt is the value you infer for your weight based on the result of your measurement. Fortunately, there are well-developed inferential rules for measurement that delin- eate the bounds of the conclusions a measurement supports. Referred to collectively as Measurement uncertainty, these inferential tools permit us to explicitly delimit the boundaries of the fuzziness associated with our conclusions and unambiguously express how confident we are about them. In other words, uncertainty provides the measure of epistemological robustness of the conclusions supported by a measured result. This feature of measurement greatly enhances its value as a tool for building knowledge. Measurement interpretation is the final step in the measurement process.

1.4.2.7 Information and Inference Like the rest of science, measurement is an exercise in information and inference.In fact, throughout the rest of the text, measurement will be treated as an information– inference device. Information is obtained through and about the measurement process and from that information we can make an inference concerning the quantity value of a measurand. As with any other inferential process, the conclusions we draw are no better than the information and inferences they are based upon. The discipline providing the tools needed to ensure quality information and sound inferential devices is Metrology.

1.4.3 METROLOGY Metrology is the “[s]cience of measurement and its application.”35 Deriving from the Greek metrologia¯, meaning theory of ratios, and metron, meaning measure, the word “metrology” was first recognized in the English language in the nineteenth century. Nonetheless, its roots as a science go as far back as formal measurement itself. It includes “all theoretical and practical aspects of measurement,” regardless of field or application, thereby providing the epistemological basis for both performing and understanding all measurements.36 As such, the fundamental principles of metrol- ogy provide a common vocabulary and framework by which one can analyze any measurement, whether for scientific, industrial, commercial, or other purposes. And whether realized or not, every measurement everywhere in the world is dependent upon these principles for scientific validity. Put simply, “if science is measurement, then without metrology there can be no science.”37∗ It is now recognized that metrology provides a fundamental basis not only for the phys- ical sciences and engineering, but also for chemistry, the biological sciences and related areas such as the environment, medicine, agriculture and food.38

Given the role that science and technology play in the world, the importance of metrology is recognized by all technologically advanced nations. Its principles

∗ The authors do not subscribe to the view that qualitative observation cannot form the basis for scientific investigation. It is relatively uncontroversial to note, however, that when relevant and feasible, quanti- tative measurement provides higher content and more useful information. Thus, in any event, without metrology, science would be far less advanced and accomplished. Science, Metrology, and the Law 29 provide the framework for technological aspects of international trade agreements, national and international laboratory accreditation requirements and formal scien- tific and industrial standards. In fact, most nations have a national metrology institute which provides the basis for competent measurement practices within its borders as well as coordinating with those of other nations to establish a body of internationally accepted measurement practices. Quite literally, “[m]etrology has become a necessity for trade, technical cooperation, scientific comparison and even simple exchange of information” [136].39 Moving forward, we will break our discussion of metrology down into five major components: the measurand, weights and measures, method validation, good mea- surement practices, and result interpretation/measurement uncertainty. Our model of measurement will be that of an information–inference device where metrology sup- plies the rules for generating information and making inferences from it. We will connect each metrological concept to an aspect of forensic measurement and its use in the courtroom as we go. By doing so, it is hoped that the understanding necessary to apply metrology in the context of the justice system will come more naturally.

1.4.3.1 Who Is a “Metrologist”? According to the U.S. Department of Labor, a metrologist:

Develops and evaluates calibration systems that measure characteristics of objects, substances, or phenomena, such as length, mass, time, temperature, electric current, luminous intensity, and derived units of physical or chemical measure: Identifies mag- nitude of error sources contributing to uncertainty of results to determine reliability of measurement process in quantitative terms. Redesigns or adjusts measurement capabil- ity to minimize errors. Develops calibration methods and techniques based on principles of measurement science, technical analysis of measurement problems, and accuracy and precision requirements. Directs engineering, quality, and laboratory personnel in design, manufacture, evaluation, and calibration of measurement standards, instruments, and test systems to ensure selection of approved instrumentation. Advises others on methods of resolving measurement problems and exchanges information with other metrology personnel through participation in government and industrial standardization committees and professional societies.40

A metrologist may be a theoretician, experimentalist, or applied scientist, and either be a generalist or specialize in any particular type of, or field utilizing, measurement.

1.4.3.2 Forensic Metrology Forensic metrology is the application of metrology and measurement to the investi- gation and prosecution of crime.

It is practiced within the laboratories of law enforcement agencies throughout the world. Worldwide activities in forensic metrology are coordinated by Interpol (International police; the international agency that coordinates the police activities of the member nations). Within the U.S., the federal Bureau of Investigation (FBI), an agency of the 30 Forensic Metrology

Department of Justice, is the focal point for most U.S. forensic metrology activities [43].41

Forensic measurements are relied upon in determining breath and blood alcohol and/or drug concentrations, weighing drugs, performing accident reconstruction, and for many other applications.

1.5 WHY FORENSIC METROLOGY FOR JUDGES, LAWYERS, AND SCIENTISTS? The principles of metrology are fundamental and provide a tool for the performance and critical evaluation of all measurements. Forensic metrology provides forensic scientists a roadmap for how to develop, perform, and properly interpret scientifically sound measurements. Moreover, in the courtroom it can facilitate the communication of results in a scientifically sound man- ner so that the conclusions that fact-finders arrive at based on evidence obtained by forensic measurements are actually supported by those results. This can go a long way in ensuring that when forensic work product and testimony are relied upon, con- fidence can be had in the integrity of our system of justice and the verdicts that issue from it. Armed with a basic understanding of forensic metrology, even a nonscientist lawyer or judge can engage in critical analysis of forensic measurements across a broad spectrum without having to develop a separate expertise in each. It can enable legal professionals to: better understand evidence from forensic measurements; better prepare and present cases that involve such evidence; and give lawyer and judge alike the ability to recognize poor measurement practices and play their respective roles in preventing bad science from undermining the search for truth in the courtroom. A basic understanding of forensic metrology will improve the practices of both legal and forensic professionals, help ensure the integrity of the legal system, its fact- finding functions and the doing of justice in the courtroom, and facilitate creation of legal foundations that are sound in science as well as the law.

ENDNOTES

1. L. Peterson and Anna S. Leggett, The evolution of forensic science: Progress amid the pitfalls, 36 Stetson Law Rev. 621, 660, 2007. 2. State v. O’Key, 899 P.2d 663, n.21 (Or. 1995). 3. A Trial of Witches at Bury St. Edmonds, 6 Howell’s State Trials 687, 697 (1665). 4. Nat’l Research Council, Nat’l Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, 87, 2009. 5. Id. at 110. 6. Rod Gullberg, Estimating the measurement uncertainty in forensic breath-alcohol analysis, 11 Accred. Qual. Assur. 562, 563, 2006. 7. Bert Black, Evolving legal standards for the admissibility of scientific evidence, 239 Science 1508, 1512, 1988. 8. Justice Stephen Breyer, Introduction to Nat’l Research Council, Nat’l Academy of Sciences, Reference Manual on Scientific Evidence 1, 9, 3rd ed. 2011 (emphasis added). Science, Metrology, and the Law 31

9. Albert Einstein, Science and religion, in Science, Philosophy and Religion, A Symposium, The Con- ference on Science, Philosophy and Religion in Their Relation to the Democratic Way of Life, Inc., New York, 1941. See also, Walter Isaacson, Einstein 390 (Simon & Schuster 2007). 10. Esther Salaman, A talk with Einstein, 54 The Listener, 370–371, 1955. 11. Richard Feynman, The Character of Physical Law 129, 1965. 12. John von Neumann, Method in the Physical Sciences, in The Unity of Knowledge (L. Leary ed. 1955), reprinted in The Neumann Compendium 628 (F. Brody and T. Vamos eds. 2000). 13. Richard Feynman, The Meaning of it All 15, 1998. 14. Karl Popper, Conjectures and Refutations 33–39, 1963, reprinted in Philosophy of Science 3-10 (Martin Curd & J.A. Cover eds. 1998). 15. Richard Feynman, The Character of Physical Law, 1965. 16. Thomas Kuhn, Logic of discovery or psychology of research?, in Criticism and the Growth of Knowl- edge 4-10 (Imre Lakatos & Alan Musgrave eds. 1970), reprinted in Philosophy of Science 11–19 (Martin Curd & J.A. Cover eds. 1998). 17. Imre Lakatos, Science and pseudoscience, in Philosophical Papers vol. 1, 1–7 (1977) reprinted in Philosophy of Science 20–26 (Martin Curd & J.A. Cover eds. 1998). 18. Sir Isaac Newton, Philosophiae Naturalis Principia Mathematica (1687) as quoted in Nat’l Research Council, Nat’l Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, 111, 2009. 19. Percy W. Bridgman, On scientific method, in Reflections of a Physicist, 1955. 20. Edward O. Wilson, Scientists, Scholars, Knaves and Fools, 86(1) American Scientist 6, 1998. 21. Nat’l Research Council, Nat’l Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, 116, 2009. 22. For a fuller account of the story which follows see, Malcolm Longair, Theoretical Concepts in Physics, 21–32 (2nd ed. 2003). 23. Malcolm Longair, Theoretical Concepts in Physics, 27 (2nd ed. 2003). 24. It is well recognized by jurists that “an aura of scientific infallibility may shroud the evidence and thus lead the jury to accept it without critical scrutiny” [65]. Paul Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197, 1237 (1980); U.S. v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974); Reese v. Stroh, 874 P.2d 200, 205 (Wash. App. 1994); State v. Brown, 687 P.2d 751, 773 (Or. 1984); State v. Aman, 95 P.3d 244, 249 (Or. App. 2004). 25. Fed. R. Evid. 702. 26. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589–590 (1993). 27. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993). “Fairness to a litigant would seem to require that before the results of a scientific process can be used against him, he is entitled to a scientific judgment on the reliability of that process.” Reed v. State, 391 A.2d 364, 370 (Md. 1978). 28. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593–594 (1993). 29. Frye v. United States, 293 F. 1013 (1923). 30. Reese v. Stroh, 874 P.2d 200, 206 (1994); Chapman v. Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002) (“A very significant Daubert factor is whether the proffered scientific theory has been subjected to the scientific method”); State v. Brown, 687 P.2d 751, 754 (Or. 1984) (“The term ‘scientific’...refers to evidence that draws its convincing force from some principle of science, mathematics and the like.”). 31. Eurachem, The Fitness for Purpose of Analytical Methods: A Laboratory Guide to Method Valida- tion and Related Topics § 4.1, 1998. 32. William Thomson (later Lord Kelvin), Electrical Units of Measurement, Lecture to the Institution of Civil Engineers, London, May 3, 1883. 33. Edward O. Wilson, Scientists, Scholars, Knaves and Fools, 86(1) American Scientist 6, 1998. 34. Joint Committee for Guides in Metrology, International Bureau of Weights and Measures, Interna- tional Vocabulary of Metrology—Basic and General Concepts and Associated Terms (VIM), § 2.3, 2008. 32 Forensic Metrology

35. Joint Committee for Guides in Metrology, International Bureau of Weights and Measures, Interna- tional Vocabulary of Metrology—Basic and General Concepts and Associated Terms (VIM), § 2.2, 2008. 36. Id. 37. William Thomson, (later Lord Kelvin), Electrical Units of Measurement, Lecture to the Institution of Civil Engineers, London, May 3, 1883. 38. Terry Quinn, Director BIPM, Open letter concerning the growing importance of metrology and the benefits of participation in the Meter Convention, notably the CIPM MRA, August 2003 at . 39. Dilip Shah, Metrology: We use it every day, Quality Progress, Nov. 2005 at 86, 87. 40. U.S. Dept. of Labor, Dictionary of Occupational Titles 012.067-010. 41. DeWayne Sharp, Measurement standards, in Measurement, Instrumentation, and Sensors Handbook 5–4, 1999. 2017 Criminal Law Seminar

In Rem Forfeiture

2:00 P.M.-3:00 P.M.

Presented by Glen Downey Downey & Mundy, PLLC 303 East Court Avenue Des Moines, Iowa 50309

THURSDAY, APRIL 20

THE ANATOMY OF A FORFEITURE CASE:

IOWA CIVIL ASSET FORFEITURE & CRIMINAL INTERDICTION ISSUES

Glen S. Downey DOWNEY & MUNDY, PLLC 303 East Court Avenue Des Moines, IA 50309 Telephone: 515-288-1552 Email: [email protected]

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Table of Contents

Civil Asset Forfeiture in Iowa – An Overview……………………………………………………3

Notice of Seizure for Forfeiture – The Issues……………………………………………………..3

Probable Cause Hearings………………………………………………………………………….3

In Rem Forfeiture Complaints and/or Notice of Pending Forfeiture……………………………..4

Answers to Forfeiture Complaints………………………………………………………………..5

Motions to Suppress – Traffic Stops & Criminal Interdiction in the wake of Rodriguez………...6

Discovery & Discovery Issues……………………………………………………………………9

The “Merits” Hearing……………………………………………………………………………11

Ancillary Issues—Disclaimers.…………………………………………………………………..13

Sample Documents

Iowa Code Section 809A Notice of Seizure for Forfeiture under Iowa Law Application for Probable Cause Hearing Pursuant to Iowa Code Section 809A.12(3) In Forfeiture Complaint & attachments Notice of Pending Forfeiture & attachments Memorandum in Resistance to Default Answer to Forfeiture Complaint Motion to Suppress Application for County Attorney Subpoena Duces Tecum Discovery Requests (State & Claimant) Claimant’s Answers to Discovery Requests Claimant’s Proposed Findings of Fact & Conclusions of Law Forfeiture Orders

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Iowa’s Civil Asset Forfeiture Law – An Overview

Iowa’s civil forfeiture laws (Iowa Code Section 809A) place a heavy burden on the property owner. Under 809A, the county attorney must only show that the property is substantially related to criminal activity by a preponderance of the evidence. Once the county attorney meets that burden, the burden shifts to the property owner to show his innocence, or in other words, that he did not know and could not have reasonably known of the conduct or that he acted reasonably to prevent the conduct giving rise to the forfeiture or that he had legitimate sources for the property in question (especially if the property is cash). Moreover, law enforcement and the county attorney’s deciding whether or not to prosecute the forfeiture receives 100 percent of the value of any property seized under Iowa forfeiture law. Local law enforcement receives the majority while the county attorney’s office receives anywhere from 10- 25% of the proceeds. Additionally, law enforcement and the county attorneys are not required to collect or report their forfeiture proceeds.

In broad brush strokes, a forfeiture action proceeds like this: 1. Property is seized for forfeiture; 2. Notice of seizure for forfeiture is contemporaneously served on Claimant; 3. Notice of In Rem Forfeiture Complaint or Notice of Pending Forfeiture action is filed with the District Court; 4. Answer; 5. Motion to Suppress; 6. Discovery; and 7. Merits Hearing

Notice of Seizure for Forfeiture under Iowa Law & Probable Cause Hearings

At the time of seizure, individuals are given a form completed by an agent for the state entitled Notice of Seizure for Forfeiture under Iowa Law. The form provides the basic information about the seizure including the date, time and place of seizure as well as a general description of the property being seized. With currency seizures of any real size, the amount is simply listed as (unknown amount of U.S. Currency).

In addition, the Notice provides a list of those currently claiming ownership or security interests of the property in questions. NOTE the address provided here is the address a forfeiture complaint or notice of pending forfeiture would be sent to.

POTENTIAL ISSUE: The Notice contains no description or outlining of Claimant’s rights and responsibilities under 809A BUT the service of the Notice upon the Claimant triggers a ten (10) day deadline under Iowa Code Section 809A.12(3) to file an Application for a Probable Cause Hearing. Under 809A.12(3) “[t]he court, after five days’ notice to the prosecuting attorney, may issue an order to show cause to the seizing agency, for a hearing on the sole issue of whether probable cause of the property then exists….” In order to file an Application for Probable Cause Hearing all of the following must be true: 1. The property was seized without a previous judicial determination of probable cause or a hearing under subsection 809A.14(4);

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2. An owner or interest holder in property files Application for hearing within ten days after notice of seizure or actual knowledge of seizure, whichever is earlier; and 3. The owner or interest holder complies with requirements for claims or petitions in 809A.11 (requirements are listed below under Answers).

The Notice does NOT provide any notice to Claimants or interest holders about the ten (10) day requirement under 809A.12(3) for filing an Application for Probable Cause Hearing, let alone what the requirements in filing that Application might be. Since most Claimants in highway seizures are out-of-state drivers and residents, they will not contact an attorney until well after the ten (10) deadline has expired.

Does Iowa’s Notice of Seizure for Forfeiture under Iowa Law meet the due process requirements under the Fourteenth Amendment? Dusenbery v. United States suggests not. In Dusenbery, the United States Supreme Court determined that the test for adequacy of notices for forfeitures under the due process clause is whether the notice provided was “reasonably calculated under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Dusenbery v. United States, 534 U.S. 694, 697 (2002), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Since Iowa’s Notice provides no indication to the interested parties that they only have ten (10) days to seek a probable cause hearing, a credible argument can be made that the notice is constitutionally deficient. After all, a probable cause hearing puts the ENTIRE burden on the State to show probable cause unlike a merits hearing which under 809A.18 MAY allow the prosecuting attorney to engage in discovery with the Claimant.

FILING TIPS:

1. If ten days or less since Notice of Seizure for Forfeiture, file an Application for Probable Cause Hearing Pursuant to Iowa Code Section 809A.12(3); or 2. If after 10 days since Notice, file Application and raise due process challenge to 10 day requirement.

In Rem Forfeiture Complaints & Notice of Pending Forfeiture

There are two ways for the prosecuting attorney to begin forfeiture proceedings:

1. File an In Rem Forfeiture Complaint with the District Court; or 2. File a Notice of Pending Forfeiture with the District Court.

Under 809A.8 (Commencement of Judicial Proceedings), the prosecuting attorney must initiate judicial proceedings WITHIN 90 days of the seizure. NOTE: Failure of the State to initiate the proceeding within 90 days deprives the District Court of the power to forfeit property seized. See In re Forfeiture of One Hundred Twenty-Six Dollars, 251 N.W.2d. 216, 217 (Iowa 1977); see also State v. Kaufman, 201 N.W.2d 722, 723 (Iowa 1972) (forfeitures are not favored under the law and this Court strictly construes statutes allowing forfeitures).

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NOTE: If 90 days has passed since the seizure and no forfeiture action has been filed, file an Application for Return of Seized Property under Iowa Code Section 809A.3 (Application for Immediate Return of Seized Property). If a forfeiture proceeding has been filed AFTER the 90 days has passed, file BOTH an Answer to the proceeding (to preserve Claimant’s rights) AND a Motion to Dismiss the action as untimely under 809A.8.

Section 809A.8(2)(a) requires service of the forfeiture proceedings by:

1. If name and address of Claimant and/or interest holder is known by: a. Personal Service; or b. Restricted certified mail. 2. If name and/or address are NOT known but Claimant and/or interest holder’s address is required by law to be on record with county recorder; secretary of state; DMV or other state agency then also by: a. Personal Service; or b. Restricted Certified Mail. 3. If name and/or address are NOT known and is NOT on record as described above then by PUBLICATION in a newspaper of general circulation in the county where the seizure occurred.

NOTE: Be aware that prosecuting attorneys often do not follow proper service requirements and send notice of forfeiture proceedings to out-of-state Claimants and/or interest holders by regular certified mail and not restricted certified mail. Restricted certified mail requires delivery only to the addressee or, in other words, the Claimant and/or interest holder. See Iowa Code Section 618.15. When the Notice or Complaint is returned “undeliverable,” County Attorneys will then file requests for Default saying the Claimant did not answer the forfeiture proceeding in time. IF the County Attorney files for default, file a Resistance, citing to Section 809A.8(2) and Buss v. Gruis, 320 N.W.2d 549 (Iowa 1982) (holding that if the statute in question requires notice by restricted certified mail than the use of ordinary mail or even certified mail is not valid).

NOTE: What accompanies the Complaint or Notice varies from county to county and so what you might have to subpoena or ask for varies greatly. For instance, in Pottawattamie County, the County Attorney always files a Complaint and attaches all the police reports to the Complaint. Other counties may just file a Notice without any supporting reports or evidence.

Answers to In Rem Forfeiture Complaints & Notice of Pending Forfeiture

Iowa Code Section 809A.13 requires that a Claimant or interest holder file an Answer to the forfeiture proceeding within 20 days of proper service of the Complaint or Notice. In addition, the Answer filed by Claimant and/or interest holder must contain the following:

1. The caption of the proceedings and identifying number, if any, of the Notice or Complaint; 2. The address where the Claimant will accept mail (NOTE: always put the attorney’s address here); 3. The nature and extent of the Claimant’s interest in the property;

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4. The date, the identity of the transferor, and the circumstances of the Claimant’s acquisition of the property in question; 5. The specific provision of this chapter relied on in asserting that it is not subject to forfeiture; 6. All essential facts supporting each assertion; and 7. The specific relief sought.

See Iowa Code Section 809A.13(5)(a-g).

NOTE: While Section 809A.13(5)(d) requires specifics as to where Claimant acquired the property, it is in the Claimant’s best interests to keep this answer as generic as possible while still asserting a basis of ownership, especially if the property in question is cash. For example, if the Claimant asserts that it acquired the cash through employment, the county attorney and investigating agency will attempt to verify Claimant’s employment records and use what they find in any merits hearing against the Claimant. So if they Claimant has not been traditionally employed, investigators will often get on the stand asserting that they were unable to locate any employment records for the Claimant for the past decade, for example. So, in other words, if the Claimant acquired the money through a self-owned business that specific answer would be better than “employment” since investigators could not use a lack of employment records to suggest something nefarious against the Claimant.

Motions to Suppress: Traffic Stops & Criminal Interdiction in forfeiture proceedings

In Iowa, the most common forfeiture proceedings are the result of cash and/or property being seized during a traffic stop. Although, as discussed below, forfeiture proceedings in Iowa are civil proceedings, there is much overlap with criminal law and criminal proceedings so that a working familiarity with motions to suppress for traffic stops and other search/seizure environments is a definite plus.

NOTE: that in the federal forfeiture system, there are no Motions to Suppress, but despite the fact that Iowa civil asset forfeiture proceedings are civil proceedings, Motions to Suppress are allowed and a successful Motion will almost always result in the county attorney having no evidence to use to attempt forfeiture. See In re Flowers, 474 N.W.2d 546, 548 (Iowa 1991) (In establishing a right to forfeiture, however, the State may not rely on evidence obtained in violation of the Fourth Amendment protections nor derived from such violations).

By far, the most common forfeiture proceeding in Iowa begins with a “routine” traffic stop westbound along I-80. Why, westbound? The traditional thought from law enforcement is that drugs flow from the west along the highways to the eastern seaboard for distribution in the major cities and that cash from those drug sales then flows back west along the highways. Criminal interdiction officers focus their attention and stops along the westbound lanes of I-80 particularly in Poweshiek and Pottawattamie counties.

Criminal interdiction is a training method perpetuated by an organization called Desert Snow and its founder Joe David, a former California highway patrol officer with a penchant for large seizures and the sizeable number of civil rights lawsuits to match. Criminal interdiction is a

6 method whereby officers use a “routine” traffic stop to engage the motorist in “casual” conversation and begin a criminal investigation into the driver and others in an attempt to uncover whether they are engaged in criminal activity or are merely “members of the innocent motoring public.” However, even a cursory glance at the dash-cam videos will lead to the quick conclusion that these conversations are anything but “casual” and that the officers already believe the individuals are engaged in criminal activity before they begin the conversation. What also strikes you is how remarkably similar ALL of the forfeiture interdiction videos are. The stop will go something like this:

• Officer pulls over car for a small traffic infraction, speeding, failing to signal, tinted windows; • Officer approaches passenger-side window and says, hey, I’m just out here reminding people to be safe and slow down, mind if I see your license, registration and proof of insurance?; • Hey, this is a really nice truck you got here. Is it new? How do you like it? My bother- in-law has one just like it and he loves it. That’s a great topper on it. Is that factory? • Hey, thanks for the information. I’m just going to give you a warning here today and get you out of here and back on the road as quickly as possible, okay? • Why don’t you come on back here to my car with me and we will get out of here. • Back in the car: so where you coming from today? Where are you headed? Is that where you live? No, where do you live? What do you do there? Why are you traveling out west then? How long have you been on the road? Really, that long? I can’t stand driving for that long so I don’t know how you do it. So you say you came from Raleigh, huh? How do you end up here on I-80 then? Seems kind of out of your way to back to Tucson. • Hey, here’s your warning and please just slow down, okay? Thanks for being patient with me. • Driver is told he can be on his way but while walking back to his car, the officer will approach him again. Hey, you mind if I ask you a few more questions? • Do you have anything illegal in your car? No. No drugs like marijuana or something? No. Are you carrying any large amounts of cash or U.S currency? No. Are you sure about that? • Hey, do you mind if I search your vehicle? Well, no, I don’t see why you need to. Look, I’m just doing my job and it sure would make my job a lot easier if you would just let me search it real quick and you could be back on your way? Again, I don’t see why you need to, so, no. Well that makes me think you are hiding something from me, are you? No. Well then it would be okay if I run my dog around your car, wouldn’t it? I mean, it only takes a minute. • Well can I say no to that? You can say whatever you want but I’m going to run my dog around your car now, okay? Well you do what you have to do, but I don’t want you to. Fine, go stand at the front of your vehicle about fifteen feet while I run my dog around. • Officer runs the dog around the vehicle or calls another officer to run the dog around the vehicle. • Officer approaches driver again and says, hey, so here’s the deal, my dog alerted on your car and I now have probable cause to search your vehicle. There’s no way the dog could have hit on my car. Well, he did and I’m not going to argue with you. The dog alerted

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for the presence of four narcotics: cocaine, meth, heroin and marijuana. That’s impossible. Look, I need you to pat you down and then I’m going to search your vehicle. • Officer then searches the vehicle and finds the cash.

Prior to 2015, while questionable, these stops were generally difficult to challenge under Whren. See Whren v. United States, 517 U.S. 806, 809-10 (1996) (holding that while a traffic stop was a seizure under the Fourth Amendment such a seizure was constitutionally reasonable where the police have probable cause to believe that a traffic violation has occurred.) And both Caballes and Johnson had concluded that the Fourth Amendment tolerated certain unrelated investigations that did not lengthen the roadside detention. Illinois v. Caballes, 543 U.S. 405, 406-408 (2005) (dog sniff); Arizona v. Johnson, 555 U.S. 323, 327-28 (2009) (questioning). The Eight Circuit had taken these cases to mean that a traffic stop was reasonable under the Fourth Amendment so long as the detention and investigation were deminimis. See, for example, United States v. Morgan, 270 F.3d 625, 630 (8th Cir. 2001) (holding that a postcompletion delay in the traffic stop of under ten minutes was permissible).

But in April of 2015, the world of the traffic stop and criminal interdiction changed when the U.S. Supreme Court decided Rodriguez v. United States, 135 S.Ct. 1609 (2015). In Rodriguez, the Court concluded that while an officer may conduct inquires incident to the traffic stop such as checking the license, registration, proof of insurance and determining whether there are any outstanding warrants against the driver, any inquires or investigation into other crimes that detour from the traffic mission are not reasonable under the Fourth Amendment because by their very nature they extend the duration of the traffic stop. Rodriguez, 575 U.S. at *6-8. As the Court said, “[l]acking the same close connection to roadway safety as the ordinary inquires, a dog sniff is not fairly seen as part of the officer’s traffic mission.” Id. At *7. While certain safety precautions are recognized by the Court as necessary during a traffic stop, “safety precautions taken in order to facilitate such detours” into other crimes are not reasonable or permissible under the Fourth Amendment. Id. at *7-8. This is because, the Court concluded, “[h]ighway and officer safety are interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking in particular.” Id. at *8. In other words, anything that extends the traffic stop for ANY length beyond the time necessary to complete the traffic stop in question violates the Fourth Amendment.

So, back to the criminal interdiction forfeiture stop. The ordinary script above while permissible in a pre-Rodriguez world, now violates the Fourth Amendment. After all, the very nature of a criminal interdiction forfeiture stop is to use the ordinary traffic stop as a ruse to conduct a wider criminal investigation – that is, in the words of interdiction officers themselves, they are trying to separate the criminals from the innocent members of the motoring public and are using their questions as a tool to do this. However, in the absence of independent reasonable suspicion or probable cause, the argument is that the interdiction officer can no longer use his questioning techniques to try and develop reasonable suspicion or probable cause. See United States v. Evans, 786 F.3d 779 (9th Cir. 2015) (holding that a ex-felon registration check and dog sniff prolonged the traffic stop and thus violated the Fourth Amendment); United States v. Hight, 2015 WL 4239003 (D. Colorado, June 29, 2015) (holding that the discovery of a non-extraditable warrant from another state did not give the officer reasonable suspicion or probable cause to extend the traffic stop to wait for another officer to arrive on the scene to conduct a search of the

8 vehicle); U.S. v. $167,070.00 in U.S. Currency, 2015 WL 3658069 (D. Nevada June 12, 2015) (holding that a reasonable traffic stop became unreasonable and violated the Fourth Amendment when the officers did not have independent reasonable suspicion and based their belief that criminal activity was afoot on questioning that prolonged the traffic stop and on the driver’s refusal to consent to a dog sniff).

NOTE: There are lists available of Iowa officers who have been trained by Desert Snow and trained in criminal interdiction techniques. Many of these officers have previously testified as to their training and the purpose and use of criminal interdiction in both suppression hearings and in depositions. In an evidentiary hearing connected to the Motion to Suppress it is important to have a detailed and very specific timeline (with times and specific questions asked by & actions taken by the officer or officers) from which to question the officer. If at all possible, know the officer’s training history ahead of time and know how the officer answered questions about their traffic stops in a pre-Rodriguez world. Pin down the officers’ reasons for asking specific questions or for taking specific actions – that is, Deputy Miller, returning to your patrol car and running a google maps search on the distance between the New Jersey Turnpike and Ithaca had nothing to do with stopping my client for speeding, did it? Look for anything that the officer does or says that is unrelated to the purported reason for the traffic stop and use that against the officer in the Motion to Suppress hearing.

NOTE: Also, warrantless searches & seizures in forfeiture proceedings should be challenged under State v. Gaskins, 866 N.W.2d 1 (Iowa 2015). Gaskins overruled State v. Sanders, 312 N.W.2d 534 (Iowa 1981) and ruled that warrantless searches of automobiles incident to arrest where the suspect is not within reaching distance of the area to be searched violate Article I, Section 8 of the Iowa Constitution. As the Court noted, under the Iowa Constitution, officers may not conduct a warrantless search of a suspect’s vehicle and its contents incident to the suspect’s arrest on the grounds that it is reasonable to believe the vehicle contains evidence of the offense of the arrest. Gaskins, 866 N.W.2d at 11-13.

Although Gaskins is limited to searches incident to arrest, it seems rather inconceivable that the Court would declare warrantless searches of vehicles incident to arrest unconstitutional but approve of warrantless searches of automobiles where the suspect and others are not arrested but are also outside the vehicle as is the case with most searches in forfeiture cases. In fact, Chief Justice Cady’s concurring opinion seems to suggest that at least he, and maybe others, believe that there should not and perhaps will not even be an automobile exception to the warrant requirement under Article I, Section 8 of the Iowa Constitution.

TIP: Because of the discovery issues discussed below, file your Motion to Suppress and argue for an evidentiary hearing and decision prior to the Court holding a merits hearing on forfeiture.

Discovery & Discovery Issues

Iowa Code Sections 809A.18 & .19 govern discovery in forfeiture proceedings. Please note that forfeiture proceedings are civil proceedings and under 809A.13(6) the statute declares that “[t]he rules of civil procedure shall apply to discovery by the state and any claimant who has timely

9 answered the complaint. Therefore, as a civil proceeding, the Claimant and/or interest holder is never required to be present unless ordered by the Court or subpoenaed by the County Attorney.

Iowa Code Section 809A.18 gives the prosecuting attorney broad powers of enforcement, including the ability to conduct an investigation “of any conduct that gives rise to forfeiture.” Before or during the commencement of a forfeiture proceeding, the prosecuting attorney can subpoena witnesses, compel witness’s attendance, examine them under oath and require the production of documentary evidence for inspection, reproduction or copying.

NOTE: Because Iowa Code Section 809A.18 allows for the county attorney (and law enforcement) to conduct an after seizure and even an after forfeiture proceeding filing investigation, the statute encourages law enforcement officials to seize first and investigate later. That is, even if law enforcement finds U.S. currency and nothing else in the vehicle searched, they will almost always seize the cash anyway hoping that an investigation after the fact will turn up something that justifies the forfeiture of the money. Compounding this issue is the fact that both law enforcement and prosecuting attorneys offices receive a percentage of the seized funds. For instance, in Pottawattamie County, the county attorney’s office receives 20% of all funds they successful forfeit, while the local law enforcement agency that seized the funds received the other 80%. What this means for discovery is that funds are often taken with little or no evidence that it is connected to conduct giving rise to forfeiture and county attorney’s will attempt to use the discovery process to justify the seizure. Do not let them and do not help them.

Because Iowa Code Section 809A is a civil proceeding, the Claimant and/or interest holder’s attendance is NOT required absent a court order to the contrary or a subpoena. So if you determine, after examining what the county attorney and law enforcement has for evidence that they cannot meet their burden, do not have your client attend any of the hearings, especially the merits hearings.

Note than often that when you request reports, recordings, etc., from county attorneys, the county attorneys will often ask for reciprocal discovery, including interrogatories, depositions, and requests for production of documents. At this stage, you should tell the county attorney that the Claimant and/or interest holder will be invoking their Fifth Amendment right against self- incrimination and you will not be responding to discovery requests. Under Iowa Code Section 809A.19, however, the county attorney could try to compel your client’s responses.

Section 809A.19 allows for the Court to enter an order compelling responses, either ex-parte or after a hearing, at the request of the county attorney if the following conditions are met: 1. The county attorney must make a written request because in their judgment both of the following are true: a. The production of the evidence may be necessary to the public interest; and b. The person has or is likely to refuse to produce evidence on the basis of the privilege against self-incrimination. 2. The production of evidence that is compelled, or any information directly or indirectly derived from the production of evidence, SHALL NOT be used against the person in SUBSEQUENT criminal case, except perjury or false swearing.

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NOTE: It has been my experience that county attorneys will not use Section 809A.19 to compel your client’s testimony for what I think are two reasons. One, county attorneys would want a criminal conviction against your client because any serious misdemeanor or conviction against your client stemming from evidence obtained during the seizure means the county attorney will have met their initial burden in showing, by a preponderance of the evidence, that the property was substantially connected to criminal activity. The burden will then have shifted to your client and you will have to engage in discovery if you want your client to testify and/or offer evidence to rebut that presumption. Second, because of the increased political and media attention focused on civil asset forfeitures, I think county attorneys are reluctant to offer immunity to a person they are saying is, in essence, a criminal. Offering immunity would look to the public like law enforcement and the county attorneys do not care whether these individuals are criminal and are instead only interested in trading a criminal conviction for a wad of cash. The public outcry, in my estimation, would be immense and therefore I’ve yet to see the county attorney invoke the immunities of 809A.19.

NOTE: I am worried that a smart county attorney might focus on the specific wording of Section 809A.19(4) which says that the evidence cannot be used in any SUBSEQUENT criminal case and therefore the county attorney could argue that a criminal case filed before the forfeiture proceeding (presumably from the same seizure) would not be covered by the immunities of 809A.19(4).

If served discovery requests, assert that answering such requests violates your client’s procedural due process rights as the state has seized your client’s property without probable cause and is now attempting to justify the seizure after the fact. Also invoke your client’s Fifth Amendment rights against self-incrimination. See Wohlstrum v. Buchanan, 884 P.2d 687 (Az. 1994).

NOTE: Ask yourself whether depositions are really necessary in these forfeiture proceedings. After all, you presumably have the reports and video and audio recordings of the seizure and aftermath and there are already depositions and testimony from many of these interdiction officers that you could receive from your colleagues. Not only are you giving them a clue as to your approach for not much a gain, but you are also giving the county attorney a better argument for compelling your client’s deposition. As always, though, these decisions should be taken on a case-by-case basis.

The Merits Hearing

If you are unsuccessful at having the proceeding dismissed or the evidence suppressed, the State can proceed to a merits hearing attempting to establish the State’s right to forfeiture. Iowa Code Sections 809A.11 and 809A.13(7) cover what the State or Claimant and/or interest holder must establish in a merits hearing.

Section 809A.11(9) provides that if money was found in close proximity to any contraband or any instrumentality of conduct giving rise to forfeiture, the presumption is that the money was the proceeds of conduct giving rise to forfeiture. Otherwise the State can create a presumption of forfeitability by establishing any of the following:

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1. The person has engaged in conduct giving rise to forfeiture; 2. The property was acquired by the person during that period of the conduct giving rise to forfeiture or within a reasonable period of time after that period; and 3. No likely source for acquisition of the property exists other than the conduct giving rise to forfeiture.

Section 809A.3 defines conduct giving rise to forfeiture as:

1. An act or omission which is a public offense and which is a serious or aggravated misdemeanor or felony; 2. An act or omission occurring outside this state, that would be punishable by confinement of one year or more in the place of occurrence; 3. An act or omission committed in furtherance of any act or omission described in #1, which is a serious or aggravated misdemeanor or felony, including any inchoate or preparatory offense; and 4. Notwithstanding numbers 1-3, violations of chapter 321 or 321J shall not be considered conduct giving rise to forfeiture, except, a. Section 321.232; b. A second or subsequent violation of section 321J.4B, subsection 2, paragraph b; c. Section 321J.4B(9).

In sum, forfeiture proceedings use a system of shifting burdens. The initial burden rests on the State to prove forfeitability by a preponderance of the evidence. Iowa Code Section 809A.13(7). If met, the burden shifts to the Claimant and/or interest holder to show that they either meet one of the statutory exemptions from forfeiture provided by Section 809A.5 or that they have a legitimate source of income and a reasonable reason for carrying the cash. See, e.g. State v. $10,000 Seized from Mary Patrick, 562 N.W.2d 192, 195 (Iowa Ct. App. 1997).

To meet its burden of forfeitability, the State must show a “substantial connection” between the property and conduct giving rise to forfeiture. Section 809A.13(7). Evidence of a particular conclusion is substantial when the conclusion may be reasonably inferred from it. See In re Property Seized from DeCamp 511 N.W.2d 616, 619 (Iowa 1994). BUT, the Court must not use conjecture or speculation to tie the cash seized with drug trafficking or sales.

If the State fails to meet its burden, the Court SHALL order the return of the seized property to the Claimant. Section 809A.13(8).

PRACTICE TIP: Two things to keep in mind. One, as stated earlier, try to bifurcate the proceedings and have any Motions to Dismiss or Suppress heard and decided before any merits hearings occur to keep the Court from being tainted by substantive evidence. Waive the 60 days from Answer to merits hearing to make this happen if necessary. Second, at the conclusion of the merits hearing, ask the Court for time to submit Findings of Fact & Conclusions of Law rather than merely having closing arguments. It’s important to get all of your issues preserved should an appeal be necessary. There are lots of issues still left unresolved by the appellate courts in forfeiture matters and good briefing gives you the best possibility of preserving these issues.

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Ancillary Issue – Disclaimers of Ownership

Finally, some interdiction officers will tell drivers and property owners that if they simply sign a disclaimer of ownership over the money or property, the officer will let them go without arresting them or charging them with a crime. Do such disclaimers waive the Claimant’s right to seek return or the property in a forfeiture proceeding? Law enforcement and county attorneys seem to think so.

There is nothing directly on point in Iowa but two things to consider:

1. While the Fourth Amendment does not protect voluntarily abandoned property, the abandonment of property will not be seen as voluntary if it is in direct response to an illegal search and seizure. See State v. Grant, 614 N.W.2d 848, 855 (Iowa Ct. App. 2000). So any conduct giving rise to a Motion to Suppress arguably invalidates any purported disclaimer. Furthermore, even without an illegal search or seizure, the argument can be made that asking for a disclaimer under these conditions is by its very nature coercive and therefore any disclaimer was not voluntary. And this leads us to: 2. Town of Newton v. Rumery, 107 S.Ct. 1187 (1987). Rumery filed a civil suit against the police for false arrest, etc., and the suit was dismissed by district court because Rumery had released his right to file a civil right action in exchange for prosecutor dropping criminal charges against him. The U.S. Supreme Court upheld the release but said such agreements or waivers would only be enforceable if the agreement was entered into voluntarily, there was no misconduct on the part of the prosecutor asking for the agreement, and enforcement of the agreement would not adversely affect the relevant public interests. Again, a good argument can be made that disclaimers of ownership entered into on the side of the rode by drivers hundreds and sometimes thousands of miles from home can never be considered voluntary and allowing police officers to ask for such agreements under these conditions goes against the public interest of transparency and accountability for our public officials.

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2017 Criminal Law Seminar Justice Before the Verdict Fighting Iowa’s Cash Bond Problem to Get Better Client Outcomes

3:00 P.M.-4:00 P.M.

Presented by Steven Drahozal State Public Deferend’s Office 590 Iowa St., Suite 1 Dubuque, Iowa 52001

THURSDAY, APRIL 20 Justice Before the Verdict: Fighting Iowa’s Cash Bond Problem to Get Better Client Outcomes

Steven J. Drahozal Asst. Public Defender [email protected]

April 20, 2017 The Problem Who’s In Jail?  Over 60% of jail inmates in America are awaiting trial1 o This means they have not been convicted of a crime  According to the Prison Policy Initiative, 630,000 inmates are in local jails throughout the country (this number excluded State and Federal Prisons)2 o 443,000 have not been convicted o 187,000 have been convicted o 70.31% of inmates have not been convicted  Majority of jurisdictions (including Iowa) rely on bond schedules3  90% of jail inmates who are in jail pretrial remain in jail due to inability to post bond4  47% of felony defendants with financial bonds cannot pay them What’s the Cost?  Average cost of jail bed is $60 per day o $60 in Black Hawk o $55 in Dubuque o $75 in Polk County o Cost can reach up to $200  Pretrial incarceration wastes $14 billion per year  Pretrial incarceration increases risk of o Missing school o Getting fired from a job o Increased desperation resulting in increased risk of future arrests  Pretrial detention has an average cost of $74.61 per day  Pretrial supervision has an average cost of $7.17 per day What’s the Price?  If the defendant’s potential jail sentence is less than 1 year and the defendant is being confined before trial o Four times more likely to get sentenced to jail than a defendant who is not held pretrial o The average jail sentence is three times longer than a defendant who is not held pretrial

1 Pretrial Justice Institute http://www.pretrial.org/the-problem/ 2 Prison Policy Initiative https://www.prisonpolicy.org/reports/pie2017.html 3 Iowa’s bond schedule is included in these materials. 4 The remainder of the information of the problem of pretrial incarceration comes from the aforementioned Pretrial Justice Institution and in some cases I am using their exact words from the website.

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 If the defendant’s potential prison sentence is a year or more and the defendant is confined before trial o Defendant is three times more likely to be sentenced to prison than a defendant who is not incarcerated before trial o The average prison sentence is twice as long as a defendant who is released pretrial  Money-based pretrial systems automatically discriminate against persons of color due to a higher likelihood of that person living in poverty  Although courts may not recognize it5, defendants plead guilty just to be released rather than wait for trial The Law in Iowa Bail is a constitutional right  “All persons shall, before conviction, be bailable, by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great.” Iowa Const. art. I § 12.  U.S. Constitution does not guarantee bail and the only limit on bail is that it not be excessive in light of the perceived evil United States v. Salerno, 481 U.S. 739 (1987) Excessive bail is prohibited  “Excessive bail shall not be required…” Iowa Const. art. I § 17.  “Excessive bail shall not be required…” U.S. Const. amend. VIII (applies to Iowa Grady v. Iowa State Penitentiary, 346 F. Supp. 681 (N.D. Iowa 1972))  Bail is “excessive” when it is excessive “in light of the perceived evil” and “requires a comparison between the interest the Government seeks to protect and the method by which is being protected.” State v. Briggs, 666 N.W.2d 573, 584 (Iowa 2003) (quoting United States v. Salerno, 481 U.S. 739, 754 (1987)). Chapter 811  Iowa Code Chapter 811 addresses pre and post-trial release  Defendants pending trial shall be released on: o Personal recognizance (defendant’s promise to appear without posting any bond) o Unsecured appearance bond a.k.a. “signature bond” (court sets an amount, defendant does not actually post that amount)  If neither of those is sufficient to “reasonable assure the appearance of the person for trial” then: o Appearance bond with up to 10% requirement o Bail bond with sufficient surety (“cash or surety bond” defendant can use a bail bond service) o Cash in lieu of bond (“cash bond” and defendant must pay the actual amount of the bond)  Court can also impose conditions on release (e.g.: report to DCS for pretrial services, no contact orders, substance abuse evaluation, travel restrictions, mental health evaluations, etc.)  The conditions, and bond itself, are intended to assure the appearance of the defendant and for “the safety of another person or persons”

5 See, State v. Blum, 560 N.W.2d 7, 9 (Iowa 1997) (Supreme Court did not find that inmate’s pretrial incarceration rendered his pleain voluntarily because “he had a large cell to himself and was allowed visitors and freedom to consult with his lawyer.”)

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 Defendant can “appeal” bond by asking for a bond review  If the review is denied, the defendant can summarily appeal the denial from the district court  These procedures summarize Iowa Code § 811.2 Using the law to address the problem Constitutional arguments against cash bond  Iowa Code § 811.2 states that the conditions are intended to assure the appearance of the defendant and for the safety of the community but note that the “primary purpose of bail” is to assure the defendant appears. State v. Briggs, 666 N.W.2d 573, 582 (Iowa 2003) (emphasis added).  Bail, therefore, must be tailored to that end  A bond schedule that is applied to all defendants violates equal protection guaranteed by Iowa Const. art. I § 6, U.S. Const. amend. XIV  The conditions required to secure a defendant’s appearance are as variable as different defendants o They have different financial abilities o They have differing states of mental health o They have different employment obligations and opportunities o They have different ties to the community  No less an authority than the United States Department of Justice has taken the position that pre-fixed amounts of bail for different offenses violates equal protection  In a class action suit filed in the U.S. District Court for the Middle District of Alabama, Varden et al. v. City of Clanton, the DOG filed a statement of interest that said: “It is the position of the United States that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violations the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.”6  See letter from US DOJ Civil Rights Division with DOJ recommendations attached to these materials.  Cash bonds are excessive in violation of Iowa Cons. Art. I § 17, U.S. Const. amends. VII, XIV  Addressing the argument that cash bonds are unconstitutional, the Iowa Supreme Court held in Briggs that cash bonds do not violate the sureties clause of the Iowa Constitution.  The Supreme Court went on to say: [W]e conclude that this [cash bond] is permissible under the sufficient sureties clause of the Iowa Constitution so long as the accused is permitted access to a surety in some form. However, if the accused shows that the bail determination absolutely bars his or her utilization of a surety of some form, a court is constitutionally bound to accommodate the accused’s predicament. Finally, we believe it is possible that a cash only bond could be found unconstitutional under the excessive bail clause of article I, section 17 of the Iowa Constitution. However, we do not believe the excessive bail clause combines with the sufficient sureties clause so as to automatically prevent cash

6 https://www.justice.gov/file/340461/download See also, 2015 WL 601366 (News Release of the DOJ regarding filing the Statement of Interest.

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only bail. Instead, we believe the excessive bail clause works with the sufficient sureties clause to protect the interests of the prisoner in the interrelationship between the state, the prisoner, and the surety. Thus, it is conceivable that the use of cash only bail could violate the excessive bail clause even though its use does not automatically violate the sufficient sureties clause. State v. Briggs, 666 N.W.2d 573, 583-584 (Iowa 2003) (emphasis added).  Therefore, argue that defendant is being denied the use of a surety if a cash bond is imposed and that the bail is excessive  In a criminal case, the burden is on the State to prove each element of a crime beyond a reasonable doubt. This requirement is imposed by due process. State v. Stevens, 719 N.W.2d 547, 549 (Iowa 2006)  Basing a bail decision on a purported danger to the community violates due process guaranteed by Iowa Const. art. I § 9, U.S. Const. amends. V, XIV  The defendant is not entitled to a reasonable hearing (e.g.: no cross examination)  Often, the bail decision is not based on a scientific risk assessment of the defendant, but on the level of crime the defendant is accused of o State may argue murder is a dangerous crime and therefore a high bond is needed when a defendant is accused of murder7 o Therefore, the actual standard being used is not how “dangerous” a defendant is, but what the accusation is o Defendant is deprived of presumption of innocence guaranteed by due process o “If it suffices to accuse, what will become of the innocent?” Coffin v. United States, 156 U.S. 432, 455 (1895) (quoting Ammianus Marcellinus, Rerum Gesatarum Libri Qui Supersunt) o Justice Thurgood Marshall stated that the due process clause has a role “in protecting the invaluable guarantee afforded by the presumption of innocence.

“’The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.’ Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481 (1895). Our society's belief, reinforced over the centuries, that all are innocent until the state has proved them to be guilty, like the companion principle that guilt must be proved beyond a reasonable doubt, is ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), and is established beyond legislative contravention in the Due Process Clause. See

7 “During the court appearance Saturday morning, Assistant Dubuque County Attorney Shea Chapin described Buelow as a danger to the community and a possible flight risk.

‘Based on the inherent[ly] dangerous nature of the murder-in-the-first-degree charge, we believe the “defendant is an extreme danger to the community,’ Chapin said. ‘We believe he poses a threat ... and we will not be able to keep our community safe if he is released.’” Dubuque Telegraph Herald April 1, 2017.

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Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692–1693, 48 L.Ed.2d 126 (1976); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072–1073, 25 L.Ed.2d 368 (1970). See also Taylor v. Kentucky, 436 U.S. 478, 483, 98 S.Ct. 1930, 1933– 1934, 56 L.Ed.2d 468 (1978); Kentucky v. Whorton, 441 U.S. 786, 790, 99 S.Ct. 2088, 2090, 60 L.Ed.2d 640 (1979) (Stewart, J., dissenting). U.S. v. Salerno, 481 U.S. 739, 763 (1987) (Marshall, J., dissenting) (addressing federal statute allowing court to consider alleged danger of the accused in pretrial release consideration)8  A bail decision based on the accusation (which is legally presumed false) violates a defendant’s right to be free of cruel and unusual punishment that is prohibited by Iowa Const. art. I § 17, U.S. Const. amends. VII, XIV.  The defendant is being punished by pretrial detention without having been convicted of a crime Standard bond arguments  “Danger” arguments o Argue for an empirically based scientific risk assessment program9 o Washington, D.C. does not uses money to detain defendants and has an 80% release rate, an 88% appearance rate and a community safety rate of 88%10 o If domestic abuse case, argue that NCO protects alleged victim and that nature of crime is that batterers victimize one person and are an alleged danger to that person, not society as a whole o Argue for pretrial supervision o Use criminal history (if favorable)  Appearance argument o Use Briggs to show appearance (not purported danger) is primary purpose of bond o Argue for a bond tailored to the defendant sufficient to put “skin in the game” – a doable $50 bond may be the equivalent of a $10,000 bond to a more affluent defendant o If defendant has criminal history free of failures to appear, point that out

8 Fancy, pie-in-the-sky words, right? Consider Ralph Berry. Ralph was a teenager arrested for murdering a man. Police found DNA that could have exonerated him two days after he was arrested. The evidence was not turned over to the prosecution and Ralph spent three years at Rikers Island before he went to trial and was acquitted. An innocent man spent three years incarcerated without ever having been convicted of the crime he did time for. See http://www.pretrial.org/the-problem/pretrial-injustice/ http://tv.fusion.net/story/5419/right-to-a-speedy-trial- this-innocent-teenager-waited-3-years-in-jail/ 9 http://www.pretrial.org/solutions/risk-assessment/ 10 http://www.pretrial.org/the-problem/

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U.S. Department of Justice

Civil Rights Division Office for Access to Justice

Washington, D.C. 20530

March 14, 2016

Dear Colleague:

The Department of Justice (“the Department”) is committed to assisting state and local courts in their efforts to ensure equal justice and due process for all those who come before them. In December 2015, the Department convened a diverse group of stakeholders—judges, court administrators, lawmakers, prosecutors, defense attorneys, advocates, and impacted individuals—to discuss the assessment and enforcement of fines and fees in state and local courts. While the convening made plain that unlawful and harmful practices exist in certain jurisdictions throughout the country, it also highlighted a number of reform efforts underway by state leaders, judicial officers, and advocates, and underscored the commitment of all the participants to continue addressing these critical issues. At the meeting, participants and Department officials also discussed ways in which the Department could assist courts in their efforts to make needed changes. Among other recommendations, participants called on the Department to provide greater clarity to state and local courts regarding their legal obligations with respect to fines and fees and to share best practices. Accordingly, this letter is intended to address some of the most common practices that run afoul of the United States Constitution and/or other federal laws and to assist court leadership in ensuring that courts at every level of the justice system operate fairly and lawfully, as well as to suggest alternative practices that can address legitimate public safety needs while also protecting the rights of participants in the justice system.

Recent years have seen increased attention on the illegal enforcement of fines and fees in certain jurisdictions around the country—often with respect to individuals accused of misdemeanors, quasi-criminal ordinance violations, or civil infractions.1 Typically, courts do not sentence defendants to incarceration in these cases; monetary fines are the norm. Yet the harm

1 See, e.g., Civil Rights Division, U.S. Department of Justice, Investigation of the Ferguson Police Department (Mar. 4, 2015), http://www.justice.gov/crt/about/spl/documents/ferguson_findings_3-4-15.pdf (finding that the Ferguson, Missouri, municipal court routinely deprived people of their constitutional rights to due process and equal protection and other federal protections); Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry (2010), available at http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf (reporting on fine and fee practices in fifteen states); American Civil Liberties Union, In for a Penny: The Rise of America’s New Debtors’ Prisons (2010), available at https://www.aclu.org/files/assets/InForAPenny_web.pdf (discussing practices in Louisiana, Michigan, Ohio, Georgia, and Washington state).

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caused by unlawful practices in these jurisdictions can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community2; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape.3 Furthermore, in addition to being unlawful, to the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local governments and their constituents.4

To help judicial actors protect individuals’ rights and avoid unnecessary harm, we discuss below a set of basic constitutional principles relevant to the enforcement of fines and fees. These principles, grounded in the rights to due process and equal protection, require the following:

(1) Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful;

(2) Courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees;

(3) Courts must not condition access to a judicial hearing on the prepayment of fines or fees;

(4) Courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees;

(5) Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections;

(6) Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release; and

(7) Courts must safeguard against unconstitutional practices by court staff and private contractors.

In court systems receiving federal funds, these practices may also violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, when they unnecessarily impose disparate harm on the basis of race or national origin.

2 Nothing in this letter is intended to suggest that courts may not preventively detain a defendant pretrial in order to secure the safety of the public or appearance of the defendant. 3 See Council of Economic Advisers, Issue Brief, Fines, Fees, and Bail: Payments in the Criminal Justice System that Disproportionately Impact the Poor, at 1 (Dec. 2015), available at https://www.whitehouse.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf (describing the disproportionate impact on the poor of fixed monetary penalties, which “can lead to high levels of debt and even incarceration for failure to fulfil a payment” and create “barriers to successful re-entry after an offense”). 4 See Conference of State Court Administrators, 2011-2012 Policy Paper, Courts Are Not Revenue Centers (2012), available at https://csgjusticecenter.org/wp-content/uploads/2013/07/2011-12-COSCA-report.pdf.

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As court leaders, your guidance on these issues is critical. We urge you to review court rules and procedures within your jurisdiction to ensure that they comply with due process, equal protection, and sound public policy. We also encourage you to forward a copy of this letter to every judge in your jurisdiction; to provide appropriate training for judges in the areas discussed below; and to develop resources, such as bench books, to assist judges in performing their duties lawfully and effectively. We also hope that you will work with the Justice Department, going forward, to continue to develop and share solutions for implementing and adhering to these principles.

1. Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful.

The due process and equal protection principles of the Fourteenth Amendment prohibit “punishing a person for his poverty.” Bearden v. Georgia, 461 U.S. 660, 671 (1983). Accordingly, the Supreme Court has repeatedly held that the government may not incarcerate an individual solely because of inability to pay a fine or fee. In Bearden, the Court prohibited the incarceration of indigent probationers for failing to pay a fine because “[t]o do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.” Id. at 672-73; see also Tate v. Short, 401 U.S. 395, 398 (1971) (holding that state could not convert defendant’s unpaid fine for a fine-only offense to incarceration because that would subject him “to imprisonment solely because of his indigency”); Williams v. Illinois, 399 U.S. 235, 241-42 (1970) (holding that an indigent defendant could not be imprisoned longer than the statutory maximum for failing to pay his fine). The Supreme Court recently reaffirmed this principle in Turner v. Rogers, 131 S. Ct. 2507 (2011), holding that a court violates due process when it finds a parent in civil contempt and jails the parent for failure to pay child support, without first inquiring into the parent’s ability to pay. Id. at 2518-19.

To comply with this constitutional guarantee, state and local courts must inquire as to a person’s ability to pay prior to imposing incarceration for nonpayment. Courts have an affirmative duty to conduct these inquiries and should do so sua sponte. Bearden, 461 U.S. at 671. Further, a court’s obligation to conduct indigency inquiries endures throughout the life of a case. See id. at 662-63. A probationer may lose her job or suddenly require expensive medical care, leaving her in precarious financial circumstances. For that reason, a missed payment cannot itself be sufficient to trigger a person’s arrest or detention unless the court first inquires anew into the reasons for the person’s non-payment and determines that it was willful. In addition, to minimize these problems, courts should inquire into ability to pay at sentencing, when contemplating the assessment of fines and fees, rather than waiting until a person fails to pay.

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Under Bearden, standards for indigency inquiries must ensure fair and accurate assessments of defendants’ ability to pay. Due process requires that such standards include both notice to the defendant that ability to pay is a critical issue, and a meaningful opportunity for the defendant to be heard on the question of his or her financial circumstances. See Turner, 131 S. Ct. at 2519-20 (requiring courts to follow these specific procedures, and others, to prevent unrepresented parties from being jailed because of financial incapacity). Jurisdictions may benefit from creating statutory presumptions of indigency for certain classes of defendants—for example, those eligible for public benefits, living below a certain income level, or serving a term of confinement. See, e.g., R.I. Gen. Laws § 12-20-10 (listing conditions considered “prima facie evidence of the defendant’s indigency and limited ability to pay,” including but not limited to “[q]ualification for and/or receipt of” public assistance, disability insurance, and food stamps).

2. Courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees.

When individuals of limited means cannot satisfy their financial obligations, Bearden requires consideration of “alternatives to imprisonment.” 461 U.S. at 672. These alternatives may include extending the time for payment, reducing the debt, requiring the defendant to attend traffic or public safety classes, or imposing community service. See id. Recognizing this constitutional imperative, some jurisdictions have codified alternatives to incarceration in state law. See, e.g., Ga. Code Ann. § 42-8-102(f)(4)(A) (2015) (providing that for “failure to report to probation or failure to pay fines, statutory surcharges, or probation supervision fees, the court shall consider the use of alternatives to confinement, including community service”); see also Tate, 401 U.S. at 400 n.5 (discussing effectiveness of fine payment plans and citing examples from several states). In some cases, it will be immediately apparent that a person is not and will not likely become able to pay a monetary fine. Therefore, courts should consider providing alternatives to indigent defendants not only after a failure to pay, but also in lieu of imposing financial obligations in the first place.

Neither community service programs nor payment plans, however, should become a means to impose greater penalties on the poor by, for example, imposing onerous user fees or interest. With respect to community service programs, court officials should consider delineating clear and consistent standards that allow individuals adequate time to complete the service and avoid creating unreasonable conflicts with individuals’ work and family obligations. In imposing payment plans, courts should consider assessing the defendant’s financial resources to determine a reasonable periodic payment, and should consider including a mechanism for defendants to seek a reduction in their monthly obligation if their financial circumstances change.

3. Courts must not condition access to a judicial hearing on prepayment of fines or fees.

State and local courts deprive indigent defendants of due process and equal protection if they condition access to the courts on payment of fines or fees. See Boddie v. Connecticut, 401 U.S. 371, 374 (1971) (holding that due process bars states from conditioning access to

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compulsory judicial process on the payment of court fees by those unable to pay); see also Tucker v. City of Montgomery Bd. of Comm’rs, 410 F. Supp. 494, 502 (M.D. Ala. 1976) (holding that the conditioning of an appeal on payment of a bond violates indigent prisoners’ equal protection rights and “‘has no place in our heritage of Equal Justice Under Law’” (citing Burns v. Ohio, 360 U.S. 252, 258 (1959)).5

This unconstitutional practice is often framed as a routine administrative matter. For example, a motorist who is arrested for driving with a suspended license may be told that the penalty for the citation is $300 and that a court date will be scheduled only upon the completion of a $300 payment (sometimes referred to as a prehearing “bond” or “bail” payment). Courts most commonly impose these prepayment requirements on defendants who have failed to appear, depriving those defendants of the opportunity to establish good cause for missing court. Regardless of the charge, these requirements can have the effect of denying access to justice to the poor.

4. Courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees.

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950); see also Turner, 131 S. Ct. at 2519 (discussing the importance of notice in proceedings to enforce a child support order). Thus, constitutionally adequate notice must be provided for even the most minor cases. Courts should ensure that citations and summonses adequately inform individuals of the precise charges against them, the amount owed or other possible penalties, the date of their court hearing, the availability of alternate means of payment, the rules and procedures of court, their rights as a litigant, or whether in-person appearance is required at all. Gaps in this vital information can make it difficult, if not impossible, for defendants to fairly and expeditiously resolve their cases. And inadequate notice can have a cascading effect, resulting in the defendant’s failure to appear and leading to the imposition of significant penalties in violation of the defendant’s due process rights.

Further, courts must ensure defendants’ right to counsel in appropriate cases when enforcing fines and fees. Failing to appear or to pay outstanding fines or fees can result in incarceration, whether through the pursuit of criminal charges or criminal contempt, the imposition of a sentence that had been suspended, or the pursuit of civil contempt proceedings. The Sixth Amendment requires that a defendant be provided the right to counsel in any criminal proceeding resulting in incarceration, see Scott v. Illinois, 440 U.S. 367, 373 (1979); Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), and indeed forbids imposition of a suspended jail sentence on a probationer who was not afforded a right to counsel when originally convicted and sentenced,

5 The Supreme Court reaffirmed this principle in Little v. Streater, 452 U.S. 1, 16-17 (1981), when it prohibited conditioning indigent persons’ access to blood tests in adversarial paternity actions on payment of a fee, and in M.L.B. v. S.L.J., 519 U.S. 102, 107 (1996), when it prohibited charging filing fees to indigent persons seeking to appeal from proceedings terminating their parental rights.

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see Alabama v. Shelton, 535 U.S. 654, 662 (2002). Under the Fourteenth Amendment, defendants likewise may be entitled to counsel in civil contempt proceedings for failure to pay fines or fees. See Turner, 131 S. Ct. at 2518-19 (holding that, although there is no automatic right to counsel in civil contempt proceedings for nonpayment of child support, due process is violated when neither counsel nor adequate alternative procedural safeguards are provided to prevent incarceration for inability to pay).6

5. Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections.

The use of arrest warrants as a means of debt collection, rather than in response to public safety needs, creates unnecessary risk that individuals’ constitutional rights will be violated. Warrants must not be issued for failure to pay without providing adequate notice to a defendant, a hearing where the defendant’s ability to pay is assessed, and other basic procedural protections. See Turner, 131 S. Ct. at 2519; Bearden, 461 U.S. at 671-72; Mullane, 339 U.S. at 314-15. When people are arrested and detained on these warrants, the result is an unconstitutional deprivation of liberty. Rather than arrest and incarceration, courts should consider less harmful and less costly means of collecting justifiable debts, including civil debt collection.7

In many jurisdictions, courts are also authorized—and in some cases required—to initiate the suspension of a defendant’s driver’s license to compel the payment of outstanding court debts. If a defendant’s driver’s license is suspended because of failure to pay a fine, such a suspension may be unlawful if the defendant was deprived of his due process right to establish inability to pay. See Bell v. Burson, 402 U.S. 535, 539 (1971) (holding that driver’s licenses “may become essential in the pursuit of a livelihood” and thus “are not to be taken away without that procedural due process required by the Fourteenth Amendment”); cf. Dixon v. Love, 431 U.S. 105, 113-14 (1977) (upholding revocation of driver’s license after conviction based in part on the due process provided in the underlying criminal proceedings); Mackey v. Montrym, 443 U.S. 1, 13-17 (1979) (upholding suspension of driver’s license after arrest for driving under the influence and refusal to take a breath-analysis test, because suspension “substantially served” the government’s interest in public safety and was based on “objective facts either within the personal knowledge of an impartial government official or readily ascertainable by him,” making the risk of erroneous deprivation low). Accordingly, automatic license suspensions premised on determinations that fail to comport with Bearden and its progeny may violate due process.

6 Turner’s ruling that the right to counsel is not automatic was limited to contempt proceedings arising from failure to pay child support to a custodial parent who is unrepresented by counsel. See 131 S. Ct. at 2512, 2519. The Court explained that recognizing such an automatic right in that context “could create an asymmetry of representation.” Id. at 2519. The Court distinguished those circumstances from civil contempt proceedings to recover funds due to the government, which “more closely resemble debt-collection proceedings” in which “[t]he government is likely to have counsel or some other competent representative.” Id. at 2520. 7 Researchers have questioned whether the use of police and jail resources to coerce the payment of court debts is cost-effective. See, e.g., Katherine Beckett & Alexes Harris, On Cash and Conviction: Monetary Sanctions as Misguided Policy, 10 CRIMINOLOGY & PUB. POL’Y 505, 527-28 (2011). This strategy may also undermine public safety by diverting police resources and stimulating public distrust of law enforcement.

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Even where such suspensions are lawful, they nonetheless raise significant public policy concerns. Research has consistently found that having a valid driver’s license can be crucial to individuals’ ability to maintain a job, pursue educational opportunities, and care for families.8 At the same time, suspending defendants’ licenses decreases the likelihood that defendants will resolve pending cases and outstanding court debts, both by jeopardizing their employment and by making it more difficult to travel to court, and results in more unlicensed driving. For these reasons, where they have discretion to do so, state and local courts are encouraged to avoid suspending driver’s licenses as a debt collection tool, reserving suspension for cases in which it would increase public safety.9

6. Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.

When indigent defendants are arrested for failure to make payments they cannot afford, they can be subjected to another independent violation of their rights: prolonged detention due to unlawful bail or bond practices. Bail that is set without regard to defendants’ financial capacity can result in the incarceration of individuals not because they pose a threat to public safety or a flight risk, but rather because they cannot afford the assigned bail amount.

As the Department of Justice set forth in detail in a federal court brief last year, and as courts have long recognized, any bail practices that result in incarceration based on poverty violate the Fourteenth Amendment. See Statement of Interest of the United States, Varden v. City of Clanton, No. 2:15-cv-34-MHT-WC, at 8 (M.D. Ala., Feb. 13, 2015) (citing Bearden, 461 U.S. at 671; Tate, 401 U.S. at 398; Williams, 399 U.S. at 240-41).10 Systems that rely primarily on secured monetary bonds without adequate consideration of defendants’ financial means tend to result in the incarceration of poor defendants who pose no threat to public safety solely because they cannot afford to pay.11 To better protect constitutional rights while ensuring defendants’ appearance in court and the safety of the community, courts should consider transitioning from a system based on secured monetary bail alone to one grounded in objective risk assessments by pretrial experts. See, e.g., D.C. Code § 23-1321 (2014); Colo. Rev. Stat. 16-

8 See, e.g., Robert Cervero, et al., Transportation as a Stimulus of Welfare-to-Work: Private versus Public Mobility, 22 J. PLAN. EDUC. & RES. 50 (2002); Alan M. Voorhees, et al., Motor Vehicles Affordability and Fairness Task Force: Final Report, at xii (2006), available at http://www.state.nj.us/mvc/pdf/About/AFTF_final_02.pdf (a study of suspended drivers in New Jersey, which found that 42% of people lost their jobs as a result of the driver’s license suspension, that 45% of those could not find another job, and that this had the greatest impact on seniors and low- income individuals). 9 See Am. Ass’n of Motor Veh. Adm’rs, Best Practices Guide to Reducing Suspended Drivers, at 3 (2013), available at http://www.aamva.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=3723&libID=3709 (recommending that “legislatures repeal state laws requiring the suspension of driving privileges for non-highway safety related violations” and citing research supporting view that fewer driver suspensions for non-compliance with court requirements would increase public safety). 10 The United States’ Statement of Interest in Varden is available at http://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/02/13/varden statement_ of_interest.pdf. 11 See supra Statement of the United States, Varden, at 11 (citing Timothy R. Schnacke, U.S. Department of Justice, National Institute of Corrections, FUNDAMENTALS OF BAIL: A RESOURCE GUIDE FOR PRETRIAL PRACTITIONERS AND A FRAMEWORK FOR AMERICAN PRETRIAL REFORM, at 2 (2014), available at http://nicic.gov/library/028360).

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4-104 (2014); Ky. Rev. Stat. Ann. § 431.066 (2015); N.J. S. 946/A1910 (enacted 2015); see also 18 U.S.C. § 3142 (permitting pretrial detention in the federal system when no conditions will reasonably assure the appearance of the defendant and safety of the community, but cautioning that “[t]he judicial officer may not impose a financial condition that results in the pretrial detention of the person”).

7. Courts must safeguard against unconstitutional practices by court staff and private contractors.

In many courts, especially those adjudicating strictly minor or local offenses, the judge or magistrate may preside for only a few hours or days per week, while most of the business of the court is conducted by clerks or probation officers outside of court sessions. As a result, clerks and other court staff are sometimes tasked with conducting indigency inquiries, determining bond amounts, issuing arrest warrants, and other critical functions—often with only perfunctory review by a judicial officer, or no review at all. Without adequate judicial oversight, there is no reliable means of ensuring that these tasks are performed consistent with due process and equal protection. Regardless of the size of the docket or the limited hours of the court, judges must ensure that the law is followed and preserve “both the appearance and reality of fairness, generating the feeling, so important to a popular government, that justice has been done.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (internal quotation marks omitted); see also American Bar Association, MODEL CODE OF JUDICIAL CONDUCT, Canon 2, Rules 2.2, 2.5, 2.12.

Additional due process concerns arise when these designees have a direct pecuniary interest in the management or outcome of a case—for example, when a jurisdiction employs private, for-profit companies to supervise probationers. In many such jurisdictions, probation companies are authorized not only to collect court fines, but also to impose an array of discretionary surcharges (such as supervision fees, late fees, drug testing fees, etc.) to be paid to the company itself rather than to the court. Thus, the probation company that decides what services or sanctions to impose stands to profit from those very decisions. The Supreme Court has “always been sensitive to the possibility that important actors in the criminal justice system may be influenced by factors that threaten to compromise the performance of their duty.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 810 (1987). It has expressly prohibited arrangements in which the judge might have a pecuniary interest, direct or indirect, in the outcome of a case. See Tumey v. Ohio, 273 U.S. 510, 523 (1927) (invalidating conviction on the basis of $12 fee paid to the mayor only upon conviction in mayor’s court); Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 61-62 (1972) (extending reasoning of Tumey to cases in which the judge has a clear but not direct interest). It has applied the same reasoning to prosecutors, holding that the appointment of a private prosecutor with a pecuniary interest in the outcome of a case constitutes fundamental error because it “undermines confidence in the integrity of the criminal proceeding.” Young, 481 U.S. at 811-14. The appointment of a private probation company with a pecuniary interest in the outcome of its cases raises similarly fundamental concerns about fairness and due process.

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The Department of Justice has a strong interest in ensuring that state and local courts provide every individual with the basic protections guaranteed by the Constitution and other federal laws, regardless of his or her financial means. We are eager to build on the December 2015 convening about these issues by supporting your efforts at the state and local levels, and we look forward to working collaboratively with all stakeholders to ensure that every part of our justice system provides equal justice and due process.

Sincerely,

Vanita Gupta Principal Deputy Assistant Attorney General Civil Rights Division

Lisa Foster Director Office for Access to Justice

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