Natty Shafer Law

Utah lawyer for criminal and immigration cases

Author Archives: Natty Shafer


by 2 Comments

A Story Too Good to Be True

Con artists find the most vulnerable people in society and take advantage of them. The vulnerable need help and they need hope. Immigrants, especially undocumented immigrants, are among the most vulnerable people in society. Most undocumented immigrants are unwilling to call the police and report crimes for fear of being deported.

A potential client told me of one such scam recently. She paid another woman $3,000 to fix her daughter’s immigration status. The con artist claimed to work for immigration (USCIS), and said she would be able to get her daughter a green card. They communicated regularly for several weeks, and during that time, my client recommend several other people to the con artist. Altogether, she thinks about 30 people in her Utah community paid, and they probably all paid $3,000. Allegedly, the green card was going to come in the mail several weeks ago. Now my client can’t get the con artist to answer the phone.

As I heard the story, I recognized immediately that she was the victim of a con artist, even as she held out hope that this was all legitimate. A real USCIS employee could not accept cash payments to fix someone’s status. Also, there are specific guidelines USCIS must follow. They can’t just wave a wand and fix someone’s immigration status.

While immigration lawyers often ask for money up-front, they are also going to have a permanent office where you can reach them. Also, immigration lawyers know that USCIS rarely acts quickly and would never promise you a green card “next week.” It breaks my heart to see anyone taken advantage of in this way. If you are at all in doubt, ask to see your lawyer’s bar card. Every state bar association will let you know if a lawyer is in good standing. No legitimate lawyer is going to be offended if you ask for their credentials.


by 3 Comments

Science and Forensics, Part 2: Fingerprints

Part 1: Introduction

Tented arch patterned fingerprint Everyone “knows” that each person has a unique set of fingerprints. Fingerprinting is so ingrained in our beliefs about criminal investigation that people take it for granted that fingerprints can reliably identify a suspect. Over a century of murder mysteries in novels and—more recently—television and movies have trained us to believe that fingerprinting identifies people effectively. Mark Twain wrote about fingerprints as far back as 1894 in his novel Pudd’nhead Wilson; the main character solves a murder with his eccentric fascination with the then obscure field. Since then, countless stories have turned on the information contained in a fingerprint.

Unfortunately, the most underlying premise of fingerprinting is unproven. We don’t actually know that everyone has unique fingerprints. In fact, many of our assumptions about fingerprints are unproven and haven’t been subjected to rigorous scientific analysis. We don’t know the likelihood of misidentification. We don’t have standardized rules for how much a latent print found at a crime scene needs to resemble a rolled fingerprint on file before it is certified as a “match.” We don’t even have a national accreditation body that certifies someone as an expert in fingerprints. That makes fingerprint identification the most shocking category of dubious forensic science.

The science of fingerprinting has not advanced much since the days of Francis Galton. Galton wrote the seminal book Finger Prints and published it in 1892. He was the first person to show that a person’s fingerprints do not change during a lifetime, and he invented a taxonomy for classifying fingerprints. He was also the first to postulate that each person’s fingerprints are unique. To arrive at that conclusion, he relied on a mathematical estimation that two people would have the exact same shapes at various points within his taxonomy. He concluded that the chances for duplication were 1 in 64 billion. (In 1892, that probably seemed definitively unique, but now that there are more than 7 billion people in the world, it seems less so.) Others have reconfirmed Galton’s mathematics, but over the last 130 years, there haven’t been any thorough, independent studies to verify his hypothesis.

Even if we assume that fingerprints are indeed unique, the biggest problem with the science of fingerprints is that there aren’t uniform standards for investigators. For most jurisdictions, it is up to individual examiners to decide whether they feel comfortable that a latent print from a crime scene sufficiently “matches” a suspect’s fingerprints on file. When the police or another entity rolls someone’s fingerprints, they make sure they get every finger, in pristine condition. Latent prints are almost always incomplete, smudged, and damaged. The average latent fingerprint has only about 20 percent of the full fingertip. Experts sometimes disagree about which finger a latent print came from.

Contrary to popular media, computers do not really match a latent print to a print in a database nor is it done in seconds. Instead, IAFIS, the FBI database, recognizes patterns and narrows down the potential matches from the fingerprints on file, and it takes about an hour to complete. Ultimately, a human makes a judgment call of whether a fingerprint matches, and the opinion is more art than science. No one tests these experts to see if the conclusions they draw are consistently accurate.

Perhaps the most famous instance of a wrong identification is that of Brandon Mayfield, an attorney from Oregon who the FBI erroneously thought was connected to the Madrid subway bombings. The FBI experts said that a latent fingerprint on a plastic bag containing a detonating device was “100% verified” to be Mayfield’s, despite the fact he had never been in Spain. Fortunately for Mayfield, the Spanish authorities disagreed with the FBI’s fingerprint experts. In the aftermath of the Mayfield incident, the FBI changed the way it trains its experts to testify in court. They are no longer instructed to use the same degree of certitude or to speak of fingerprints as having been verified.


by 6 Comments

Science and Forensics, Part 1: Introduction

The criminal justice system has a problem. No one knows just how reliable some types of forensic evidence are. These forensic fields were developed by crime investigators instead of by scientists. Not only haven’t they been proven to be reliable, there’s a question of whether or not they’re based on science at all. Some of them are better classified as superstition, but the criminal justice system has been slow to weed them out.

Bad forensic evidence usually makes its way into Utah courtrooms through expert testimony. Someone can testify about their credentials—frequently from spurious colleges or organizations—and then the court certifies them as an expert in a particular field. Under the Utah Rules of Evidence, judges are supposed to prevent experts from testifying about junk science. Utah Rule 702 governs expert testimony, and judges are required to make sure that the specialized knowledge that the expert purports to have is “reliable,” “based upon sufficient facts or data,” and has been “reliably applied to the facts.” Most judges do not have the expertise necessary, however, to determine if an expert’s testimony actually meets that criteria.

In a previous post, I argued that juries demanding that forensic evidence accompany eyewitness testimony has been a positive trend for criminal justice. I still believe that, but it’s also important that hard science support all forensic testimony.

The best forensics were developed independently from crime investigation and have other applications. DNA evidence is the gold standard for good forensic evidence. Everyone has DNA, it’s unique (even identical twins have a little variation), it’s quantifiable, and DNA tests can be replicated from one lab to another. Through CODIS (the Combined DNA Index System), the FBI keeps a large database of individuals’ DNA to help identify suspects in certain crimes. The one drawback is, unlike on television where it takes just a few minutes, it actually takes weeks to get the results.

Some forensic fields lack applications beyond crime investigation and don’t have independent verification. Those fields need to be subjected to the scientific process. That includes independent experimentation, peer review, and the ability to replicate conclusions. Most people are surprised when they learn that much of the forensic evidence that we were led to believe is scientific, has actually never been subjected to the scientific process, and no one has proved that they are reliable. In such fields, two different experts can come to completely different conclusions or their conclusions can be influenced by what they know about the crime they are investigating.


by Leave a comment

Answer All of Your Lawyer’s Questions Thoroughly

Regardless of the reason you hire a lawyer, you want to answer his or her questions thoroughly. Whether you are hiring a divorce attorney, someone to take care of your will and trust, or a Utah criminal and immigration lawyer like me, every question has a purpose. You want your lawyer to do the best job possible because you’re paying good money for legal services.

Many of the questions your lawyer asks may seem simple or unnecessary. One of the most common complaints people have about their lawyer is that they don’t communicate enough about the status of the case. And yet clients are often reluctant to give out personal information like cell phone numbers or email addresses. From a lawyer’s perspective, it’s frustrating to call a house during business hours, leave a message with a child, and then never hear back from you. Lawyers tend to work long hours, but we have no idea when you’re going to be home so make sure your lawyer knows the best way and best time to get a hold of you.

There’s also the subject of embarrassing or damaging information. No matter how unflattering, it’s important for your lawyer to know everything about your case. Answer questions as honestly as you can. Your lawyer is sworn to keep your information confidential, but they can only prepare for stuff they know about.

Alternatively, you could have a great piece of information that would really help your case if your lawyer only knew about it. In my experience working as an attorney in Utah, clients frequently have no idea which facts will help or hurt their case. There have been times when I’ve talked to a client several times before a key piece of information comes out because the client mistakenly believes it will hurt the case. Since most lawyers charge by the hour, you are wasting money if you don’t give the information up front.


by 2 Comments

The Police Benefit from Lying Too

Many criminal cases come down to the word of a police officer versus the word of the accused. Frequently, in cases such as drug possession and traffic offenses, an officer’s testimony is the only evidence. When the judge or jury must decide who to believe, they almost always side with the officer. Utah juries seem to be particularly trusting of the Utah police. After all, they reason, the officer has no reason to lie, while the accused is trying to avoid punishment. That logic would be sound if it the assumptions were true, but police have incentives to lie, just like everyone else.

If you think about your own job or social circle, you’ll realize that people lie for many different reasons. It doesn’t take much encouragement to make certain people lie. You likely know someone who lies just to avoid looking dumb or to sound more interesting. Imagine if that person could lie to receive promotions, pay raises, or other accolades. Then imagine that nearly everyone would believe that person, regardless of how improbable the story, simply by virtue of holding a particular job title. A courtroom and a solemn oath is unlikely to keep that dishonest person from committing perjury.

Just like everyone else, the Utah police lie for many different reasons. This point was driven home a couple weeks ago when a Utah judge ruled a Utah Highway Patrol officer was not credible. Lisa Steed, the UHP officer, was even awarded the title of “UHP Trooper of the Year” in 2009 so even highly decorated officers can perjure themselves. In hindsight, it’s not clear why Officer Steed felt compelled to lie. Her stories were often improbable and far-fetched, and yet judges and juries believed her.

A jury must make some determination as to who is lying and who is telling the truth. If an officer’s testimony is the only evidence or the primary evidence against the accused, juries absolutely need to view the officer’s testimony skeptically. And if an officer testifies that a defendant did something improbable or contrary to common sense, a jury should find the defendant “not guilty.”


by 2 Comments

Undocumented Immigrants Can Be Denied Firearms

Yesterday, the Court of Appeals for the Tenth Circuit upheld a federal law that makes it illegal for undocumented immigrants to own firearms. The Tenth Circuit includes Utah, but the case, United States v. Huitron-Guizar, arose out of Wyoming when Emmanuel Huitron-Guizar was arrested for owning three firearms. To challenge the constitutionality of the congressional law, Mr. Huitron-Guizar relied on language in District of Columbia v. Heller, which seemed to suggest that owning a firearm is an “individual right.”

The Tenth Circuit didn’t say whether a permanent resident or other immigrants can be denied firearms. The Supreme Court generally allows Congress to distinguish between citizens and non-citizens or to distinguish between undocumented aliens and legal aliens. As the Tenth Circuit noted, Congress has the power under the Constitution to determine rules for citizenship and to govern immigrants who seek citizenship.

What most interests me about this case, however, is that Mr. Huitron-Guizar has lived in the United States since he was three years old. He is now 24 years old, and he has lived in Wyoming for the greater part of 21 years. Now he is waiting deportation to Mexico, where he likely does not remember living. The particular firearms he owned would not have been illegal for him to possess if he had been a citizen.


by Leave a comment

You Can and Should Refuse Consent to the Police

Anytime the police ask you if they can look around your car/house/body, they aren’t being polite. They need your consent and you don’t have to give it. Every police officer has a personal style to the question, but their goal is to make it seem like they are just politely asking permission to do something they could do anyway. However, you have the right to refuse, but once you consent to a search, you have given up your constitutional right to be free of unreasonable searches.

This is a common theme of my blog, but even my close friends have a difficult time remembering this. This past weekend, the subject of police searches came up, and I had to remind my friends that they can tell an officer that they don’t want them to snooping around their car.

Some people are afraid of being rude, but it’s easy to politely but firmly tell an officer, “no.” To get you in the right mindset, think of the request to search your car/house/body as a rude request. For example, if a new friend came over to your house and said to you, “Do you mind if I look around your medicine cabinet? I just want to know what kind of person you are.” No matter how politely the friend said it, most of us would be flabbergasted. That’s really how you should think of any request to search you. They are asking to snoop around our private effects, and it’s within our rights to refuse. Regardless of whether the police will find anything illegal, I don’t like strangers rummaging through my personal belongings.


by 1 Comment

People Forgetful after Physical Activity

Another problem with eyewitness testimony was highlighted with a recent study that showed police officers are more forgetful after a chase or an altercation. A CNN story about the study says that the officers had a briefing on three armed robberies and then shown six photographs of suspects. Then:

The group was split into pairs where one officer rigorously assaulted a punching bag until he was visibly tired, the other did not. They were then taken to a trailer set up to represent a realistic “home” environment complete with a “target” individual who had access to multiple weapons strategically placed around the room.

Each officer went through a scenario where there was a brief but angry verbal confrontation with that person. Shortly after the scenario was over, officers were given three memory tests. They were asked to recall details of their initial briefing, the encounter – and then shown the lineup photographs.

Researchers found the group that physically exerted themselves remembered less information from the original briefing and the encounter with the target individual. In fact, more than 90% of the officers in the non-exertion group could recall at least one detail about the target. Barely a third of the officers who were involved in the physical activity remembered seeing the target person at all.

Although the study was conducted on just police officers, there is no reason to believe that the results would have been any different if they had been conducted on the general public. The participants in the study were screened to ensure that they were physically fit, and, as police officers, they are regularly asked to remember crucial details, often after physical exertion. Only a third of trained officers were able to remember any details at all about the person they encountered, so laypeople are going to have a more difficult time. Winded witnesses simply cannot be trusted to adequately identify suspects. And yet juries continue to give undue credibility on eyewitness identification.


by 1 Comment

Getting Citizenship or a Green Card through the Armed Services

Obtaining United States citizenship is easier for someone who has served in the military, regardless of whether or not the U.S. was legally in any “hostilities.” When the U.S. is in hostilities, anyone serving can petition for immediate U.S. citizenship, and as an added bonus, the military pays for the filing fees with USCIS. Currently, the U.S. is engaged in legally defined hostilities, and has been since September 11, 2001. That means that anyone who honorably serves in the military right now, even for one day, is eligible. A person can go straight from undocumented immigrant status to citizenship fairly quickly. However, the armed services are not supposed to allow undocumented immigrants to enlist, but immigrants with green cards are allowed to enlist.

For anyone who served in the armed services more than 10 years ago, it is still possible to get citizenship, even if the U.S. was not in hostilities. For service during peacetime, an immigrant needs to have served at least one year and have been honorably discharged. Also, the applicant must have lived in the U.S. for at least 30 months out of the previous five years.

It is possible to get a green card through military service, but it’s fairly rare. To qualify, an applicant must enlist in the U.S. armed services outside the U.S, and their home country’s armed services must recommend them for this immigrant status or they must be a citizen of a country that has a treaty arrangement with the U.S. Only the Philippines, Micronesia, and the Marshall Islands currently have a treaty with the U.S. allowing their citizens this green card status.


by Leave a comment

Your Defense Lawyer Should Be a Pragmatist

Utah defense lawyers frequently meet people on the worst days of their lives. A prospective client wants to hear good news, and we really want to give it. However, despite the temptation, I try not to get a client’s hopes up. It would be easy to tell them that if they just hire me everything will come out perfectly, but I don’t think that’s fair.

Unfortunately, the Utah criminal justice system is stacked against defendants. The punishments for crimes continue to skyrocket, with the average sentence for most crimes being two to four times what they were back in the 60s, and everything is illegal now. Judges throughout Utah frequently forsake their duty to be neutral and consistently favor the prosecution; prosecutors forsake their duty to seek justice and focus on winning at all cost; and Utah jurors tend to think a defendant is guilty just by virtue of the fact he is on trial, without hearing the evidence.

Which is not to say that beating a criminal charge is impossible to do in the state of Utah. The truth is, I think I’m a great lawyer. I love going to trial, and love being more prepared for my case than the prosecution. Defense lawyers that promise you the moon may not have the time or energy to devote to your case, but I never take more cases than I can handle. If you hire a defense lawyer who promises you too much, she’s probably promising her other clients too much as well and won’t have the time to devote to your case. You want a lawyer who will be realistic in his time management.

You also want a lawyer who remembers that the job of a defense lawyer is to get the best outcome possible for your case. While that could be working towards getting you a “not guilty” verdict in a trial, it could also involve accepting a plea offer that avoids jail time. You want a lawyer who will realistically appraise your case and give you honest advice. Some lawyers let their emotions get the best of them and they become focused on beating the prosecution instead of doing what is best for their client. A level-headed, compassionate lawyer is going to get you the best possible outcome for your criminal case.

I am a compassionate, pragmatic lawyer. For a level-headed criminal lawyer in the state of Utah, contact me today.