Rocky Mountain Appellate Blog

The Science of Fingerprinting

The Tenth Circuit issued a decision yesterday involving a thorough exploration of the science of fingerprint evidence.  United States v. Baines, No. 08-2098.  The sole issue on appeal was the defendant's contention that the district court erroneously admitted fingerprint evidence tying the defendant to a drug crime. 

Although studies cited by the government show that there is almost no chance that two people will have the same fingerprint, the defendant's challenge involved the question of matching fingerprints. According to the defendant, typically a "latent" fingerprint pulled from a crime scene is only 22% of a "known" print (i.e., a print specifically taken for identification purposes).  As to the matching issue, however, the government's expert testified that the FBI "made, on average, about one erroneous identification every 11 years."  (I find that hard to believe.  How does one go about identifying mis-identifications -- the unknown unknowns, as Donald Rumsfeld would say?)

The government prevailed in convincing the Tenth Circuit that the fingerprint evidence was admissible -- but just barely.  Although the Third Circuit has ruled the same way, it would not be surprising if a circuit split developed on this issue.  Daubert notwithstanding, the real basis for the court's decision is in the last paragraph of the court's analysis:

In closing, we echo the thoughts of Judge Pollak, who said regarding the desirability of research to provide the scrutiny and independent verification of the scientific method to aid in assessing the reliability of fingerprint evidence, that such efforts would be "all to the good.  But to postpone present in-court utilization of this 'bedrock forensic identifier' pending such research would be to make the best the enemy of the good.  United States v. Llera Plaza, 188 F. Supp. 2d 549, 572 (E.D. Pa. 2002).

Finally, Something Interesting in the Sotomayor Hearings

Tony Mauro at the National Law Journal has a brief update on the Sotomayor hearings.  Under questioning from Senator Specter, Judge Sotomayor indicated that she, like Justice Alito, would probably opt out of the Supreme Court's cert pool.  For nearly four decades the Supreme Court justices have "pooled" their clerks together for the purpose of summarizing and recommending action on petitions for certiorari.  The one-clerk summaries are then distributed to all the members of the pool.  Except for the clerks of Justices Stevens and Alito, all the other justices' clerks participate in the pool.

The use of the cert pool has led to concerns that inexperienced young clerks have too much influence on which cases the Court decides to take.  Judge Sotomayor's testimony is interesting because it suggests that there will soon be a third Supreme Court Justice who will opt out of the cert pool.

Kennedy's Court

A news article in today's National Law Journal reports on a recent panel discussion among the most prominent Supreme Court advocates in the country.  The panel's unsurprising consensus:  it's still very much Kennedy's Court.  As one panelist, Pamela Harris of Georgetown's Supreme Court Institute, described it, Chief Justice Roberts and his fellow conservatives are "going just as far to the right, and just as fast, as Justice Kennedy will let them."

Trial Skills

In United States v. Burke (No. 08-8033), the Tenth Circuit noted a failure on the part of the prosecutor to timely disclosure exculpatory Brady material.  The court was “greatly concerned” by this failure and held that “the belated disclosure of impeachment or exculpatory information favorable to the accused violates due process when an earlier disclosure would have created a reasonable doubt of guilt.”  However, the Tenth Circuit ultimately affirmed the defendant’s conviction on the basis that he was unable to show that he was prejudiced by the delay.

 

While the court’s ruling is significant for criminal attorneys it also highlighted the importance of care during trial.   In Burke the government was ordered to disclose all immunity agreements with testifying witnesses.  It failed to disclose an “informal” agreement with one witness, and even elicited affirmative testimony that no such agreement existed.  Defense counsel learned of the existence of the “informal” agreement only by “immediately” recognizing the significance of the following exchange during the prosecution’s direct examination “[Prosecutor]: Okay. Now, you gave an interview as part of your plea agreement – [Witness]: Uh-huh.”

Jury Selection and Harmless Error

Hatfield v. Wal-Mart Stores, Inc., (08-3233) is an excellent example of the lack of  an effective remedy when a District Court fails to strike a juror for cause.  In this case, the District Court erroneously refused to strike two jurors for cause even though “[a]t the time of trial, one of the challenged prospective jurors . . . was employed as a lift mechanic at [Defendant] Wal-Mart. The other challenged juror . . . disclosed during voir dire that she was a current Wal-Mart employee and that she had previously worked at the store where the incident occurred.  . . . [She] also disclosed that she was once co-manager with  . . . the Wal-Mart corporate representative and witness, and she knew several other Wal-Mart employees on the witness list.”  The plaintiff was thus forced to use preemptory challenges to remove these witnesses and, by virtue of having exhausted her preemptory challenges, was forced to seat a jury that included a juror who worked with the wife of the defense lawyer, and a juror who had previously worked in grocery stores and the retail industry. Under a harmless error analysis, the Tenth Circuit found that the presence of these jurors ‘did not have a “substantial influence on the outcome of the trial,’ nor does it leave one in ‘grave doubt as to whether it had such effect.’  The Tenth Circuit appears to have reached this conclusion in part because “at the time Plaintiff did not object to the composition of the jury as seated.”

U.S. Supreme Court Orders Rare Reargument in Citizens United Case

The U.S. Supreme Court has been busy issuing end-of-term decisions, including the Ricci decision which issued today.  That decision (which held by a 5-4 vote that a municipality violated Title VII by declining to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination) understandably received most of the press's attention today.

However, the Court did not issue a decision in the Citizens United v. FEC case, which was argued to the Court on March 24.  Instead, the Court took the extraordinary step of ordering reargument of the case in a special session on September 9.  Thus, the case will likely be decided by a different Supreme Court than the one to which arguments were presented on March 24.

The facts of the case surround a documentary on Hillary Clinton which a conservative not-for-profit group wanted to advertise in Democratic primary states without complying with federal campaign finance law.  Lower courts held that the movie was essentially a long campaign ad, and therefore must be regulated like one.

The Court ordered the parties to submit additional briefing to address whether the Court should overturn its past decisions banning certain political speech by corporations and corporate and union spending on television campaign ads.  This could signal that a majority of the Court is contemplating the reversal of decades of precedent on how money is spent in federal elections.

§ 5 of the Civil Rights Act Remains in Place

The Supreme Court issued its opinion in Northwest Austin Municipal Utilities District Number One v. Holder today regarding the constitutionality of § 5 of the Voting Rights Act.  The Court, in an opinion authored by the Chief Justice and joined by the remainder of the Court with the exception of Justice Thomas, who concurred in part and dissented in part, held that the district was eligible to seek a “bailout” under § 5.  The Court thus concluded that it did not need to reach the constitutionality of § 5.   Justice Thomas would have reached the constitutional question and struck down § 5.

Supreme Court Declines to Extend Title VII Mixed Motives Burden Shifting; Heightens Burden of Proof for ADEA Claims

Today, in a 5-4 decision, the Supreme Court issued its opinion in Gross v. FBL Financial Services, No. 08–441, holding that a mixed motives jury instruction is never appropriate in an Age Discrimination in Employment Act (“ADEA”) case.  This decision is noteworthy in several respects, not the least of which is the heightened difficulty a plaintiff faces when attempting to prove discrimination on the basis of age.

 

First and foremost, the Court has significantly raised the burden of proof for age discrimination plaintiffs, holding that a plaintiff must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the adverse employment action.  This represents a striking departure from the Court’s prior holdings that a Title VII plaintiff met his or her initial burden by demonstrating that an employer’s adverse action was motivated in part by an unlawful consideration.  Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).  In doing so, the Court relied heavily on the differing language of Title VII and the ADEA, noting that Congress has amended Title VII to explicitly authorize mixed motive cases.  42 U.S.C. §2000e-2(m).  Following well established tenets of statutory interpretation, the Court reasoned that had Congress intended the ADEA to permit a lessened burden of persuasion via a mixed motives theory, it would have amended the ADEA as well.  Thus, the majority concluded that the mixed motives burden shifting adopted by all of the Circuit Courts has no place in ADEA cases.

 

Second, and perhaps just as importantly, as noted by Justice Stevens in his dissent, today’s decision is addressed to a question on which the Court did not grant certiorari.  The question presented -- whether a plaintiff must first present direct evidence of discrimination before obtaining a mixed motives jury instruction in an ADEA case was disregarded.  Instead, Justice Thomas invoked Rule 14.1, which provides that the Court may consider any “subsidiary question fairly included” within the question presented by the parties.  Sup. Ct. R. 14.1.  While the question actually addressed is arguably antecedent to the subject to the cert petition, and, therefore within the ambit of Rule 14.1, Justice Stevens correctly points out the fact that the decision appears to represent “unnecessary lawmaking.”  Putting the outward appearances aside, the Court also went out of its way to cast doubt on the ongoing viability of Price Waterhouse even as it relates to common law civil rights precedent.  Gross, at 10 (“it is far from clear that the Court would have the same approach were it to consider the same question today in the first instance"; "even if Price Waterhouse were doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework”).

 

Finally, one can’t help but ponder the net effect of this decision going forward.  On one hand, the reasoning behind the Court’s decision -- strict statutory interpretation highlighting Title VII’s express language permitting the mixed motives theory -- opens the door for a broader application of this higher burden, beyond the ADEA context.  Plaintiffs bringing suit under Federal statutes that are modeled or legally analogous to Title VII, such as the ADA, may be foreclosed from utilizing the Price Waterhouse mixed motives theory on the reasoning that the ADA does not contain the express language Congress added to Title VII in the 1991 Civil Rights Act.  On the other hand, by singling out Congressional intent and legislative action as its basis for such a resounding change in the enforcement of Federal discrimination laws, the Court may be tempting (baiting?) Congress into reactive legislation, á la the Lily Ledbetter Act or the currently pending Arbitration Fairness Act.  We’ll have to wait to see whether this decision prompts a similar reaction from Congress, but readers should note that Senator Patrick Leahy (D-Vt.), Chairman of the Senate Judiciary Committee, recently posted a harshly worded assessment of today’s decision on his website: http://leahy.senate.gov/press/200906/061809c.html.

U.S. Supreme Court Defers to the States on Handling of DNA Evidence

The U.S. Supreme Court just issued a fascinating decision on post-conviction DNA evidence.  In District Attorney's Office v. Osborne, the plaintiff, who had been convicted of a brutal crime in Alaska 15 years ago, filed a section 1983 lawsuit against the DA's office seeking the release of DNA evidence that he claimed would prove his innocence.  The Supreme Court, by a 5-4 vote, rejected the lawsuit.  The first two paragraphs of Roberts' opinion succinctly set forth the Court's reasoning:

DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.  It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure—usually but not always through legislation.

 Against this prompt and considered response, the respondent . . . proposes a different approach: the recognition of a freestanding and far-reaching constitutional right of access to this new type of evidence. The nature of what he seeks is confirmed by his decision to file this lawsuit in federal court under 42 U. S. C. § 1983, not within the state criminal justice system.  This approach would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause.  There is no reason to constitutionalize the issue in this way.  Because the decision below would do just that, we reverse.

Is the Door As Open as Roberts and Scalia Say It Is?

Per Justice Scalia's dissent in Caperton v. A.T. Massey Coal Co., Inc.,  (U.S., June 8, 2009), 39 States elect their judges. According to the Chief Justice, joined by Scalia, Thomas and Alito, and Justice Scalia writing separately, the majority in Caperton opened a barrel of snakes, not a can of worms, by using the Due Process Clause to strike down a decision by a West Virginia Supreme Court of Appeals' justice refusing to recuse himself in a case where a coal company's corporate executive gave an estimated $3 million in contributions to the election of the non-recusing jurist.

The facts are unquestionably bad. The corporate executive's company suffered a $50 million jury verdict against it. The executive decided to back a challenger for an open state supreme court seat, bankrolling him to the tune of $3 million (which included $2.5 million to a § 527 group called "And For the Sake of the Kids"). The challenger won by a relatively narrow margin (approximately 53% to 47%). When the appeal of the $50 million jury verdict made it to the state supreme court, the new justice refused to recuse himself and the court reversed the jury verdict by a 3-2 vote. (Recusal would have apparently led to affirmance by an equally divided court.) The Supreme Court majority did not question the state supreme court justice's subjective view of his own lack of bias, but held, "[o]n these extreme facts the probability of actual bias rises to an unconstitutional level" based upon an "objective standard."

The dissents forcefully assert that the national court system will be dealing with Caperton bias claims for many years to come. Per the Chief Justice: "The majority's analysis is 'objective' in that it does not inquire into Justice Benjamin's motives or decisionmaking process. But the standard the majority articulates – 'probability of bias' – fails to provide clear, workable guidance for future cases."

Whether this is simply one of those rare sui generis cases that will likely never be replicated in our lifetime, or whether the barrel of snakes has truly been unleashed, we'll just have to see.