Natty Shafer Law

Utah lawyer for criminal and immigration cases

Category Archives: Criminal Law


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A Low Threshold for Probable Cause

Two weeks ago the FBI arrested Paul Kevin Curtis for sending letters laced with ricin to President Obama and Senator Wicker of Mississippi, and it has been another week since the charges were dropped. Now the FBI has a second suspect in custody who may be responsible for sending the letters.

One lesson to be learned from the episode is the importance of letting the judicial process take its course and realizing that it is not just a cliche that a person is innocent until proven guilty. It is a central concept of our judicial system that until a person is convicted, they are still innocent under the law, and travesties will happen if we let mob mentality undermine that.

However, the episode also shows the depressingly low standard that it takes to arrest someone or for a judge to issue a search warrant. The Supreme Court has said that the standard for both an arrest and a search warrant is “probable cause.” The definition of probable cause has evolved a bit, but we are now using the definition outlined in a 1983 case, Illinois v. Gates, in which the Court said, “probable cause does not demand the certainty we associate with formal trials.” Instead, judges issuing search warrants should determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place…. This flexible, easily applied standard will better achieve the accommodation of public and private interests.”

The Court is correct that this is an easily applied standard. It is easily applied because it sets the bar so low. The Court has never set a numerical value on what “fair probability” means, but if I were to say there is a fair probability of rain tonight, and the weatherman says there is a 15% of rain tonight, I don’t think anyone would find those statements contradictory. As has become apparent in the 30 years since the Gates decision, judges have interpreted “fair probability” to mean “within the realm of possibility.”

It is doubtful the FBI will voluntarily release the information that backed their search warrant and arrest of Paul Kevin Curtis, but from news reports, it appears there was little evidence against him. Both letters were signed “I am KC and I approve this message.” That is a sign off phrase Curtis has used in internet postings. The FBI acknowledged that the letters and stamps had no fingerprints and were sealed with self adhesives, leaving no DNA evidence. It would seem that the “probable cause” leading to the arrest and search of Mr. Curtis’ house consisted entirely of the repetition of phrases that he likes to use in social media, and the fact that he lives in Mississippi and his initials are KC.

If that is all it takes to establish probable cause, there is not much stopping the police from searching anyone’s home and not much stopping them from arresting just about anyone.


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Public Defenders in Utah

The Salt Lake Tribune had an opinion piece earlier this week that highlighted the need and problems with the public defender system in Utah. According to the article, 48 states fund and supervise the process for ensuring representation for the indigent. Utah is one of the two states that do not. Each county devises its own system for people who cannot afford their own lawyer. Many counties spend as little as possible on public defenders, meanwhile providing ample resources to their prosecution departments.

In Gideon v. Wainwright, the Supreme Court held that state courts are required to provide counsel in criminal trials for people who cannot afford a lawyer. Earlier this year, we celebrated the 50th anniversary of Gideon, but still Utah does not have a statewide system for defending the indigent.

It really is important that everyone be given a proper attorney and trial. It would be hard to overstate how important it is to have a competent attorney who has the time to dedicate to an individual case. Everyone in Utah should let their representatives know that they do not approve of the current situation.


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Prosecutors with Weak Cases

One the frustrating things about being a defense attorney is the presumption that prosecutors only bring cases when they are sure the defendant is guilty. Unfortunately, prosecutors just do not spend a lot of time pondering whether each individual defendant is guilty. Now an interesting study from earlier this year found that one of the predictive factors in having a case later overturned was the prosecutor having had a weak case. The study compared the overturned convictions with what they called “near misses,” or cases where an innocent defendant was indicted but released before a conviction. (To determine that the near misses were actually innocent, the study examined the evidence to see if the person was actually innocent.) Overall in the near misses, the prosecutors actually had stronger cases. This is counterintuitive as we usually expect weaker cases to be dismissed sooner and stronger cases to have a higher chance of conviction.

To explain this phenomenon, some explanations are more charitable than others. Among the more generous interpretations are that prosecutors, realizing the weakness of their case, prepare for trial better, or that this is merely a failing of the human mind. Prosecutors who indict in spite of a weak case must first convince themselves of the correctness of their position. That internal conviction “translates” well with jury, and the jury convicts because of the confidence of the prosecutor. A less generous interpretation is that prosecutors with weak cases take active measures to illegally withhold evidence from the defendant. They become so committed to proving the defendant’s guilt that evidence potentially exonerating the defendant is discounted. In some of the cases the study examined, the prosecutor failed to turn over exculpatory evidence.

Other possible explanations the study highlighted are that prosecutors might behave differently when they have a weak case. While the police and the prosecutor are still investigating, they often realize they need to shore up weak aspects of their case. In some of the overturned convictions, the prosecutor used a lineup based on a merely passing resemblance to the victim’s description of the perpetrator; some victims feel compelled to select someone out of a lineup, but once a victim chooses someone they are unwilling or unable to tackle the idea they may have made a misidentification. In some cases, the prosecutor used a snitch to provide corroborating testimony. (The word “snitch” has a specific use in terms of testimony. It refers to someone who is not an eyewitness, but that supposedly gets an accused person to confess or corroborate all or part of the case against them. For myriad reasons, such testimony is extremely unreliable. Often, a snitch will receive compensation in the form of a reduced sentence or better living conditions in exchange for testimony. Unfortunately, juries often give snitches too much credence.) These actions have the effect of confirming a prosecutor’s incorrect hunch about a case, and people love when their hunches are confirmed.

This is just one of the many reasons that defense attorneys frequently remind juries to hear all the evidence and evaluate it on its own terms. Prosecutors frequently are wrong, and, as this study suggests, sometimes more likely to obtain a conviction when a case is weaker. That is why juries must actually listen to the evidence presented and uphold their duty to find a defendant guilty only when they are guilty beyond a reasonable doubt.


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Your Privacy Rights Are in the Control of a Canine

The Supreme Court issued a ruling yesterday that is disappointing for anyone concerned with civil rights. In Florida v. Harris, the Court unanimously overruled the Florida Supreme Court and held that a “dog sniff” is enough to establish probable cause for a police officer to search your vehicle.

Last summer, I wrote about a case that has yet to be decided, Florida v. Jardines, that also challenges the validity of drug-sniffing dogs. The problem with drug-sniffing dogs is that they can be influenced by their human handlers, and the prejudices and preconceptions of dog handlers should not be enough to establish probable cause. The latter case could still be decided differently since the Court has traditionally been more protective of rights when a house is involved, but its decision in Harris indicates a reluctance to second guess the use of drug-sniffing dogs, despite a lack of science establishing their reliability.

In this case, the dog was wrong that the defendant, Clayton Harris, had any of the narcotics that it was trained to uncover. Mr. Harris was pulled over twice, two months apart, and the same dog and handler walked around his car. Both times the dog alerted. The first time, Mr. Harris had ingredients and equipment for making methamphetamine, but the dog was not trained to find those ingredients. The second time, he had nothing illegal at all.

From a civil rights perspective, the problem is that most police departments do not keep records of stops involving drug-sniffing dogs. For people who are truly innocent, this means their lives can be disrupted while an officer tears apart their car looking for the contraband that will never be found. The innocent person may or may not receive an apology from the officer, but that will be cold comfort for anyone who missed a crucial appointment or had embarrassing (but not illegal) personal belongings uncovered while the officer searched. For the guilty, it shifts the burden of proof from the prosecution to the defense. A defendant must show that the dog and the handler are unreliable, and if police departments do not keep records or a dog’s mistakes, this will be nearly impossible.


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Juries Rarely Hear about Eyewitness Unreliability

There is a pretty big problem with alerting a jury about how unreliable eyewitness testimony is: the expense of hiring an expert witness. A defendant could agree with everything a prosecutor asserts except the identity of the perpetrator, but the defendant is going to need someone to testify about eyewitness unreliability.

Anything a lawyer says during opening or closing arguments needs to be supported at some point during the trial; a lawyer cannot just assert during closing arguments that eyewitnesses are extremely unreliable. To allow the jury to hear that information, a lawyer needs a witness, and it has to be an “expert witness.” The Utah Rules of Evidence, which are based on the federal rules, say that any witness testifying on scientific or specialized knowledge, and not on “the witnesses’s perception” (what they personally saw or heard), must be certified as an expert.

Expert witnesses are paid for their time, both in preparing for trial and they day of the trial. If they have to travel, it is normal to pay for travel expenses and food. How much an expert is paid depends a bit on their specialty. Rare specialties and specialties in which a person could be making a pretty good salary outside of court are paid more. Experts on eyewitness unreliability would fall into the “rare” category and are paid accordingly.

This has the compound effect of compromising their integrity in the minds of the jurors. When experts testify, they are routinely asked about the payment for testifying. Many are paid more than $100 an hour, and the jury may conclude the expert will say anything for that much money. Many lawyers decide it is not worth the price to tell the jury, especially if there are other arguments in favor of a not guilty verdict, and other defendants cannot afford the price regardless.


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It Didn’t Happen That Way

If there were a piece of scientific evidence that had a 30% failure rate, we would not let it into court. Polygraphs, which have been shown to be accurate between 90 and 95% of the time, are inadmissible. The justice system has decided that juries will give too much weight to the information. Yet eyewitness testimony, in study after study, has shown to have high error rates, but is not only let into court, it is frequently the determining factor in a jury’s decision.

The rules of evidence are quite complicated. The central rule is that the evidence has to be relevant. After that, most rules are designed to keep juries from letting the wrong factors determine their decision. In other words, the evidence is relevant, but due to human nature, a jury either will not hear it at all or a judge must carefully limit the evidence in order to prevent that particular piece of evidence from being the only thing a jury considers.

Studies have shown there is no correlation between how confident a witness is and how accurate their memory actually is. But a confident witnesses is a more believable witness, so prosecutors encourage witnesses to state a high degree of certainty to a jury.

Most people overestimate their own ability to remember things, and likewise overestimate other people’s memories. False memories tend to accord to our philosophy and world view. As a recent slate article put it, “The scary part is that your memories have already been altered. Much of what you recall about your life never happened, or it happened in a very different way. Sometimes our false memories have done terrible things. They have sent innocent people to jail.”


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Prosecutorial Discretion, Part 2: Plea Bargaining in the Modern Justice System

Part 1: Introduction

Justice is unbalanced.
Photo by “Frachet“

The modern day practice of prosecutors is to charge a defendant with every charge that could apply, and then drop several charges during the plea bargaining phase. It was not always so. Until about 1970, plea bargaining was a rare occurrence in the United States. When people were charged with crimes, prosecutors were expected to prove them before a jury. There were exceptions, of course, but sooner or later they had to go before a jury and make a case. This kept them in check. The more crimes charged, the more preparation to be done for a trial. Including weaker charges would allow defense lawyers to focus on those charges and suggest they were overzealous. Prosecutors probably care a little too deeply about their win/loss record for each charge in their jury trials. (They look at it like baseball stats, in a way.)

In 1970, the Supreme Court gave its explicit blessing to plea bargaining. Article III of the Constitution provides, “The trial of all crimes, except in cases of impeachment, shall be by jury.” Many legal experts were of the opinion that plea bargaining was unconstitutional. In Brady v. United States the Court said that plea bargaining is acceptable as long as the pleas are “knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” The number of cases resolved through plea bargaining jumped and kept on growing so that few cases make it to trial now. Today, prosecutors regularly agree to drop one or more charges in exchange for a plea, and judges have no problem with this.

This period of plea bargaining has also coincided with a systematic increase in prison or jail sentences. Legislators have decided that they want to be “tough on crime” so that sentences are about three times as long as they were fifty years ago. Combine this with an explosion in the number of crimes that are on the books and a person can be facing a very long sentence, indeed. As a result, many defendants feel coerced into taking a plea. Some prosecutors threaten to bring further charges or prosecute friends and family, if a defendant does not take a plea offer.


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Prosecutorial Discretion, Part 1: Introduction

The Aaron Swartz story has highlighted the immense power prosecutors have in the justice system. For those who are not familiar, he faced federal prosecution for downloading millions of articles from “JSTOR,” an online source for academic articles, and for improperly using the Massachusetts Institute of Technology (MIT) computer system to download those articles. On January 11, he hanged himself after being unable to reach a plea resolution with the federal prosecutor, who insisted that he plead guilty to all 13 felony counts and that he spend at least 6 months in jail.

In a public statement, his family referred to the proceedings as “prosecutorial overreach.” Swartz had an account with JSTOR, but he exceeded JSTOR’s limits on the number of articles he could download by using a program called “keepgrabbing.” After he was caught and he returned his copies to JSTOR, JSTOR’s attorney asked the prosecutor to drop the charges. However, MIT was also a party and did not push for a dismissal. If Swartz had been convicted at trial, the prosecutor would have asked for at least seven years in prison and could have gotten as many as 35.

A prosecutor has an ethical duty above and beyond that of most lawyers and must be a “minister of justice” and not just an advocate. As part of their prosecutorial discretion, they have the power to decide who to prosecute and what charges to bring. No matter how much someone may desire a prosecutor to pursue a case, a prosecutor can and should decline to do so if they don’t think it is in the interest of justice. (This can be particularly frustrating for victims who find they have no way to force a criminal case to go forward.)

If we believe prosecutors will use their power for good, prosecutorial discretion is not a problem. Prosecutors are either directly elected, or someone who is elected appoints them. In Utah, each county elects their district attorney, and the district attorney is in charge of hiring and prioritizing assets, such as which crimes to prosecute. Making a prosecutor a political position has advantages and drawbacks. On one hand, it makes prosecutors accountable to the people, but on the other hand, it can politicize decisions and force prosecutors to pander.

It is now common for prosecutors to use a kitchen sink sort of approach to charging defendants because it makes it appear they are tough on crime. A prosecutor throws every charge against a defendant that they could theoretically prove; they seldom charge just the serious charges or the charges they are sure they can prove. As I have mentioned before, everything is a crime now so a prosecutor can indict nearly anyone if they are determined. It is literally impossible for anyone, lawyer or layman, to know whether every action is legal. Many crimes are not even intuitively wrong, but are rather administrative crimes. Swartz was charged with 13 felonies because the prosecutor knew that most juries would find him guilty of at least one of the charges. The more times jurors have to say “not guilty,” the more they feel like they are saying they morally approve of the defendant’s conduct.

Another part of a prosecutor’s discretion is whether to offer or not offer a plea deal, and to decide the terms of a plea offer that they will accept. Unfortunately for Swartz, the prosecutors in his case refused to accept any deal that did not involve jail time.


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Marijuana Use in Colorado or Washington; Ticketed in Utah

Live marijuana plant
Photo by Khalid Mahmood

A few weeks ago, voters in Colorado and Washington approved ballot initiatives that legalized smoking or otherwise consuming marijuana. In a few weeks, people 21 or older will be able to buy up to an ounce of marijuana for recreational use. While I have no personal objections to marijuana use, there are a few things to keep in mind before you plan a day trip from Utah to Colorado, or book a flight to Seattle.

First, marijuana use is still illegal under federal law, and the laws in Colorado and Washington don’t change that. Local law enforcement officials should be enforcing the laws of their states and not the laws of the national government, but it is still possible for federal agents to arrest a suspect and prosecute them in federal court. The punishments for federal crimes tend to be stiffer than the ones states impose. If you only purchase the small quantities that will be legal under Colorado and Washington law, you are unlikely to catch the attention of federal agents, but there is always the chance you will be an unlucky person snagged in a larger drug bust.

Second, you could get a DUI conviction here in Utah, even if you are no longer high or otherwise impaired. This can be shocking for many people to discover they can be prosecuted for something that did not affect their driving. THC—the active ingredient in marijuana—leaves behind small molecules in the blood that are detectable for up to two weeks. Anyone caught is subject to a DUI under Utah Code 41-6a-517, sometimes called a “metabolite DUI.” The punishments for a metabolite DUI are slightly different from a traditional DUI, but you’re still going to be facing some serious consequences, including the suspension of your driver’s license for 4 months.

That is not to say that you have no case if you are accused of a metabolite DUI. Police officers must have a reason for pulling you over, and must follow proper procedures before obtaining a blood sample. Inexperienced or careless officers often make mistakes or ignore constitutional rights. Having an attorney fight for you is the best way to get the best possible outcome for your case.


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Video Evidence Is Invaluable

More and more police cruisers in Utah are equipped with dash cams. Not every city in Utah has them, but almost every Utah Highway Patrol cruiser does. Each city varies a little on when they record. Some record all the time, others only when police officers turn it on, and others turn on automatically when the police sirens or emergency lights are engaged.

For me and my clients, I prefer if the recording is always active. There’s no chance of someone intentionally turning it off or forgetting to turn it on. Cameras that wait until a police officer turns on the emergency lights offer too little too late; a jury or judge can never see what caused the officer to pull someone over. Often a client in a DUI or drug possession type case contends that the police officer was never justified in pulling them over in the first place. People accused of driving under the influence are not often trusted by judges so when they say that they were not speeding or weaving, their testimony is given little credit. Incidentally, dash cams do not always work in the defendant’s favor, and they corroborate what the police officer reported. In those situations, the dash cam is valuable, because there is concrete evidence that everything the police officer is saying is true, and I can push for a defendant to take a plea instead of wasting time or money pursuing the case further.

The quality of the pictures continues to get better. It is likely that most people have seen dash cam footage on news broadcast or news magazines and had difficulty telling what is happening in the video. The low resolution, grainy videos give officers license to describe a video however they want. The officer can say, “It’s difficult to see, but right there, the defendant swerves.” All the judge or jury can see is a couple of taillights moving along the road, and the officer gets the benefit of the doubt.

High resolution videos today are better, and combined with microphones on many officers’ belts, we know exactly how a conversation between a suspect and an officer transpired. Even at night, the better cameras today clearly show the lanes, street signs, and other obstacles. Juries can clearly see that an officer is lying, or at least embellishing. Often an officer uses jargon in their police report. Almost every DUI report mentions a few things: the person smelled strongly of alcohol, they stumbled, they spoke slowly and slurred their speech. While we still can’t smell what the officer smells, the tapes sometimes show a lack of stumbling or drunken speech.