On Halloween weekend 2011, I heard Justices Breyer and Souter speak at a luncheon. Souter spoke about his resistance to technology. He described using pen and paper to draft opinions and recounted how a person had recently shown him an iPad set up to replay a Court argument. When Souter was done listening, he didn’t know how to turn it off, so he just stuck the thing, still talking, in a closet and closed the door.

Souter is no longer on the Court, but this is a tiny window into the technological savvy of the folks who will decide whether warrantless searches of cell phones are constitutional. It has been observed that some of the justices are more tech savvy than others. As Stephen Wermiel wrote here, “The Court is sometimes befuddled by what to make of different forms of technology, either as to how devices actually work or as to how to fit technology into particular legal doctrines, or both.” I wonder if the justices are among the 91% of Americans who own a cell phone. Do they email and text via phone, or receive electronic correspondence from doctors or banks? How deeply do they grasp how much private information flows through these devices?

For the first time, based on the arguments made today, SCOTUS will evaluate whether the 4th Amendment prohibits warrantless searches of cell phones incident to arrest. Two cases are before the Court. In the California case, Riley, the prior court said warrantless search incident to arrest was permissible. In the Massachusetts case, Wurie, the First Circuit said a warrant was required. (More background is included in my prior posts on this topic.)

The best summary of the facts of the California case is here in Amy Howe’s plain English summary, which relies brilliantly on the writing style of a well known children’s book:

“It was a series of events straight out of the children’s book If You Give a Mouse a Cookie – the Law and Order edition. The storyline goes something like this: If you are driving a car with expired tags, the police might pull you over. If they do, they will ask to see your driver’s license. When you give it to them, they will run a computer check and learn that it has been suspended. So they decide to impound the car. But before they tow the car away, they search it. When they search it, they discover two handguns under the hood, so they arrest you. When they arrest you, they take your smart phone. When they take your smart phone, they read your text messages. When they read the messages, they see texts which suggest that you might be a member of a local gang. Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.”

“At your trial, you ask the judge to bar the prosecutors from introducing the evidence obtained from your phone. But the judge rejects that request, ruling that the police could search your phone as part of the process of arresting you – a rule known as a “search incident to arrest.” So the evidence from your phone comes in at your trial, and – even though none of the four eyewitnesses that the prosecutors call can identify you as one of the shooters – you are convicted of attempted murder and assault with a semi-automatic firearm. And because of the evidence linking you to a gang, the seven-year sentence that you would have gotten is increased to fifteen years to life.”

In arguing to justify warrantless searches, the government asserts that phones should be subject to search incident to arrest because phones are “particularly likely to contain evidence of wrongdoing” and can be remotely wiped clean. Riley and Wurie counter that a seized phone can be held securely in a faraday bag (fun new word: “faraday bag”) that would prevent wireless communications unless and until a warrant is secured.

Think about the texts, emails, photos, contacts and calendar in your phone. While most of us don’t have a phone filled with “evidence of wrongdoing,” we have abundant personal information stockpiled there. The ability to rummage around in photos, calendars and contacts to investigate and see if anything incriminating turns up is exactly what police want. It is what police routinely do in California under the current state of the law. However, it is also precisely what the Fourth Amendment prohibits. Hopefully SCOTUS will adopt a bright line prohibition on warrantless cell phone searches.

(The link to follow the Riley case is here, with links to the many comprehensive briefs filed on this issue. The link to follow the Wurie case is here. More information is here and here.)

(Now that the arguments have been heard (transcript is here), the predicting begins.)

In contrast to my usual weary New Year’s Eve wish to get this year over with and start fresh pronto, I’m feeling optimism for 2014. It’s not just that our bees seem to be surviving the winter and that our pantry is stocked with the fruits of my fall canning efforts. I’m actually feeling optimistic about the criminal justice system.

Suddenly everyone is noticing the over incarceration crisis. AG  Holder is talking about it, saying “we cannot simply prosecute or incarcerate our way to becoming a safer nation”  and “too many Americans go to too many prisons for far too long, and for no good law enforcement reason.” Even Sesame Street is talking about it. The time is right to wake the hell up and admit that locking people up is not the answer. While we’re at it, let’s finally admit that cops, lawyers and prison guards should not be the primary providers of mental health care.  Oh, and let’s have a real discussion about addiction and poverty.

I don’t think this is fantastical. There is cause for optimism in the ongoing examination of racial bias in the justice system (just a few examples here, here , here), including Presidant Obama finally saying “African American young men are disproportionately involved in the criminal justice system.” These discussions propel progress. There is cause for optimism in the decline in support for capital punishment.

Much has been written about 2013 being the fiftieth anniversary of the Supreme Court decision in Gideon v. Wainright, guaranteeing each person accused of a crime the right to appointed counsel (watch this cool film retelling the Gideon case). Many decades after Justice Hugo Black declared “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has,” where are we on equal justice? At this 50 year mark, many stopped to take a good look at the plight of public defenders (see Gideon at 50  and panel with Steve Bright here and great charts in Mother Jones here).  Today the public defender system is in crisis in many places. The numbers are staggering. Each year in the United States, over 12 million people are arrested. Eighty percent of the individuals that make their way through the criminal justice system are represented by one of only 15,000 public defenders. In reponse to this crisis, PD offices are fighting and winning battles over budget and caseload.

One of the events of 2013 that makes me most hopeful for the future is becoming involved with the organization Gideon’s Promise. A few years ago, at a DC event honoring the amazing Steve Bright (of SCHR), my law school classmate William Montross told me there was a group training PDs in the South, and I should get involved. I went to Atlanta last summer as a participant in the Gideon’s Promise Trainer Development Program, which teaches the curriculum as well as strategies for effectively mentoring public defenders. I believe this program is among the strongest in the nation for training and supporting new public defenders to be zealous, ethical and compassionate defenders.  I’m thrilled that our office has been accepted as a Gideon Nation partner office and will work closely with Gideon’s Promise in the coming year.

The dedication of the Gideon’s Promise community is depicted in the acclaimed documentary Gideon’s Army. This film follows three public defenders in the south, all of whom face seemingly insurmountable odds as they help indigent clients through the criminal justice process. We’ll be screening the film in Sonoma County on January 15 and tickets can be reserved here:

Gideon’s Army tickets! ($11) 

Between Gideon’s Promise, embracing social media, and participating in a nationwide effort to challenge unreliable forensic evidence, I feel newly connected to a community of public defenders that is fighting for fairness in the criminal justice system. All around me I see the dedication that sparked my superhero admiration for the attorneys I assisted as a student investigator at PDS those many years ago, which inspired me to go to law school to be a PD. In today’s public defender community, people like Andre Vitale are pushing back against budget cuts and excessive caseloads, writing on the new NAPD site yesterday: “without public defenders who receive equal treatment and are provided the same resources as the prosecution, the criminal justice system becomes a system of injustice.”  In 2013, Jimmy Carter said that criminal justice reform is “this generation’s civil rights movement.”

I get that it’s not all rosy out there. The NSA has turned all our lives into one big peepshow and SCOTUS seems ok with tossing all of our DNA into the database and so on. But it’s worth noting that if you make a dumbass move like Matthew Yglesias did here, thinking that public defenders are low hanging fruit, you will be quickly reminded that PDs don’t take that crap. (Of the many replies, this by JJC was my favorite smack down.)  PDs don’t take that crap from journalists or judges or prosecutors or those who set budgets or policy. So I’m optimistic and let’s fight on in 2014.

For the first time this month, I viewed evidence in the form of a video recorded by a police officer’s body worn camera (BWC).  In addition to dashboard cameras mounted in some patrol cars, some officers now wear small video cameras. The recordings can be downloaded directly to a computerized storage and indexing system, preferably without permitting tampering or editing. Reviewing the video confirmed my prior opinion that I am in favor of officers wearing BWCs to record their investigative contacts and arrests.

This technology has been anticipated and gradually adopted over several years. In 2009, San Jose was the first department to use ear mounted cameras.   In 2010, David Harris (of the blog Failed Evidence which has covered BWCs several times), wrote that a new technology had emerged “with the potential to increase police compliance with the law,” and that field tests in Britain had shown “that the devices were a uniquely effective bulwark against false complaints.”

Today Phoenix, Seattle, Oakland, Salt Lake City, and Albuquerque are exploring use of BWCs. Locally, police department in Cotati and Sebastopol are using cameras and it is coming soon to Santa Rosa.

My own BWC video review experience illustrates three strengths of the evidence: completeness, accuracy and context.  First, completeness: There was a three page police report describing the arrest about which I also viewed the video. The report would have required perhaps fifty pages to capture the information on the tape.  It’s simply not feasible for written police reports to capture each and every exact phrase spoken by every person contacted. The video grabs all that, passively, without consuming the officers’ time. Second, accuracy: with the video, there is no room for squabbling over who said what.  I immediately recognized an error in the written report: a statement attributed to my client was inaccurate. On the video it was clear that several people were talking at one time and easy to understand the error, and also possible to replay the video to hear the accurate statement.  Third, context/demeanor: paper police reports are notoriously tone-deaf. Every word is translated into “cop speak,” everyone “exits the vehicle.”  The video captures tone and context. The video I viewed recorded many impatient statements of a frustrated cranky officer that put other people’s responses in context.  Having an objective record of this information is invaluable.

As they are being used more widely, the debate about BWCs has heated up, particularly in New York. Those following the stop and frisk litigation there will recall that Judge Scheindlin’s original order (Floyd v. City of New York. Aug. 12, 2013) mandated the use of BWCs in pilot programs in some precincts. Judge Scheindlin wrote that the cameras could provide “a contemporaneous, objective record of stop-and-frisks” that might “either confirm or refute the belief of some minorities that they may have been stopped simply as a result of their race, or based on the clothes they wore, such as baggy pants or a hoodie.” (Ultimately, the second circuit jumped in and pulled the case away from Judge Scheindlin for dubious reasons that have been sharply criticized by some very respectable folks.)

In the era of NSA surveillance of, well, everything, one irony in this debate has been the resistance of some in law enforcement to wearing cameras. (see discussion here and here) Officers resistant to the idea of “policing the police” have opposed the cameras or asked that their use be optional. I’ve been asking around to see what the officers I encounter in court think of BWCs. My very informal poll of officers reveals the following: those I tend to respect as even-handed and even-tempered support the cameras and say “I got nothing to hide.” Others seem offended by anyone scrutinizing their conduct, pause to call the ACLU names, and oppose the cameras. There were several jokes about posting “idiots” on tape on YouTube, so privacy concerns are not unwarranted (the ACLU has proposed guidelines for use here).

Controlled studies support use of the cameras. For example, during a pilot program in Rialto, CA, during which some officers responding to calls from February 2012 to February 2013 wore BWCs, the use of cameras reduced both officer use of violence and complaints against the department. As Mike Riggs wrote in the The Atlantic: “As Rialto officers demonstrated, the presence of cameras actually improves police performance, and that improvement was reflected in a drastic reduction in complaints. It’s easy to imagine how these cameras could help law enforcement agencies find and discipline bad apples in their own ranks, while protecting good officers from career-ruining lawsuits and disciplinary actions.”

The ACLU weighed the privacy concerns and, with some suggestions, supports use of the camera:  “Although we generally take a dim view of the proliferation of surveillance cameras in American life, police on-body cameras are different because of their potential to serve as a check against the abuse of power by police officers. Historically, there was no documentary evidence of most encounters between police officers and the public, and due to the volatile nature of those encounters, this often resulted in radically divergent accounts of incidents. Cameras have the potential to be a win-win, helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse.”

While BWCs are new, I’ve been reviewing other types of recordings with clients for years. Interestingly, I cannot recall a single client ever saying that the store or bank had no right to record them committing a robbery or a shoplift. The same is true of clients captured on dash cams resisting: they accept the video evidence, especially if they were snockered and don’t clearly recall the event. The availability of a video creates an objective piece of evidence that is easy to evaluate and generally accepted. Client meetings that include review of recordings are generally very productive. I am a supporter of “cut through the crap” evidence like audio and video recordings (which rarely match the police report summaries). More and more, it’s my clients who are clamoring for body cam or dash cam recordings when they dispute resisting arrest or complain that officers behaved inappropriately.

For all these reasons I would like to see BWCs used widely.

As the “baby Hope case” has been back in the news recently, some people are asking questions about why the entire interrogation wasn’t recorded–apparently only the last bit was on tape.  I believe all law enforcement questioning should be recorded. We have the technology to record questioning in the field and at the station and it should be done. Here’s why.

First, the easy reason: we need an accurate recording of what was said and what wasn’t said.  We spend a lot of time in court rehashing who said what when, arguing about whether it was really said, and which words were used. Recordings would accurately capture each statement.

The more subtle but no less important reason is the occurrence of false confessions, which happen when suspects make admissions or confessions that are not accurate. Often the interrogation leading up to the admission explains why a false statement was made. For this reason, the entire interrogation should be recorded, from start to finish. It’s not okay to interrogate for ten hours and then record the last five minutes.

False confessions are notoriously counterintuitive and hard to understand. I’ve heard countless prosecutors and cops and even seasoned defense attorneys say “it just doesn’t make sense, no one would confess to something they didn’t do.”  This is wrong and we need to educate ourselves, prosecutors, judges and jurors about how false confessions happen. Frequently. Of the over 300 cases of wrongful convictions documented by The Innocence Project, about 25 percent include a false confession or false statement of guilt.

I did not fully understand how a false confession could happen until I had a client  (and several experts) walk me through, step by step, how it happened to him.  In what was the most terrifying experience I’ve had as a public defender, I went to trial on a child molest allegation with a false confession defense. In the end, the jurors believed that the interrogation process had caused the client to parrot back words and events that didn’t actually happen.

For CA lawyers, I focused quite a bit of argument on the jury instructions regarding confessions and adoptive admissions, and argued that the circumstances did not permit the client to deny the statement (see elements 3 and 4 of an adoptive admission). The key is that common police interrogation methods (like the Reid Technique, see a powerful critique here) relentlessly accuse and berate the suspect, lie about the state of the evidence and statements of others, and do not accept denials or assertions of innocence. The suspect is systematically convinced that admissions and confessions are the only permissible statements.

As in the example of my own case experience schooling me, often one narrative story provides more compelling education than any seminar or statistic. Here are two examples of stories that explain powerfully how false confessions happen.

First, there is the film Scenes of a Crime:

Sue Luttner (who has a great site on Shaken Baby Syndrome, thank you Phil Locke for directed my attention to it) wrote a post reviewing the documentary film “Scenes of a Crime.”  She offers this description: “Filmmakers Grover Babcock and Blue Hadaegh have interspersed actual footage from the lengthy police interrogation of an accused father in Troy, New York, with excerpts from Reid Technique training films and commentary by key players in the case. The result is a clean, careful, and gripping illustration of how a man can be manipulated into confessing to a crime he didn’t commit.”

Luttner goes on to describe how a doctor declared (inaccurately) that the child had died from a skull fracture and had been murdered.  At that point, police with the best of intentions used a skillful interrogation to convince the child’s father to take the blame.  As Luttner describes,  “In the course of a 10-hour interrogation over two days, detectives Adam Mason and Ronald Fountain lie to their suspect—repeatedly and cruelly—threaten to target his wife, argue with him, pretend to befriend him, pray with him, hug him, and flatly reject his repeated denials.” Luttner concludes: “The most chilling aspect of “Scenes” is the unshakeable confidence of the police and prosecutors, who never look back even as the medical evidence unravels.”

This “unshakeable confidence of the police and prosecutors” seems to me to get to the heart of why false confessions happen in wrongful conviction cases tenaciously propelled by well-meaning cops.

The second example comes from the great folks at This American Life, who created the 28 minute radio piece Confessions .

Thanks to David Harris (at the wonderful Failed Evidence site) for the post describing this episode so compellingly like this: “A Washington, D.C. detective investigating a murder participated in the interrogation of the main suspect. The woman denies any involvement at first, but after seventeen hours of questioning, she finally admits to participating in the crime, and supplies many incriminating details. After the suspect is charged but before her case goes to trial, follow-up investigation by police causes the case to fall apart, and a judge orders her released from jail after nine months. The case is never solved. Some years later, the same detective is assigned to a cold case unit, and he begins to look into the case again by watching a video tape of the interrogation. What he sees reveals what went wrong, and it lays out an incredible lesson in exactly how the false confessions come to be.”

Both the film “Scenes of a Crime” and the radio piece “Confessions” illustrate how false confessions happen. Making an accurate record of the entire questioning process is why all interrogations need to be recorded.

In California, we have a new law requiring that some interrogations of minors be recorded (SB 569 , which will take effect Jan. 1, 2014). The bill was put forward by Sen. Ted W. Lieu, who cited research showing that false confessions by children under 18 have led to an increase in wrongful convictions. Juveniles may be particularly vulnerable to falsely admitting guilt, according to a study led by Florida International University psychologist Lindsay C. Malloy, published in the American Psychological Association’s journal Law and Human Behavior.

The new California law requiring the recording of minors is a significant step forward. Next step: record all interrogations of minors and adults. As one retired judge writes in his op-ed in support of recording interrogations, “There are no disadvantages if the truth is our goal.”

Today in California, an arrest typically means that a police officer will seize any cell phone “reasonably associated with the arrestee”– on a table or in a pocket, purse or backpack– and take all of the following actions: answer incoming calls, scroll through recent texts, answer texts, review photos, and plug the phone into a computer that will defeat password protection and download the entire contents of the phone. All texts, emails, photos, music goes to the police and prosecution. (The defense might eventually get our hands on bits and portions of this “phone dump” in unviewable formats, but that’s a different topic.)

For the upcoming SCOTUS term, many court-watchers expect to see cases challenging these warrantless police searches of cellphones. (See Jeff Welty, USA Today  ,  McClatchy  , Scotusblog, and USA Today again with a cool graphic.)

QUESTION PRESENTED: Whether or under what circumstances the Fourth Amendment permits police officers to conduct a warrantless search of the digital contents of an individual’s cell phone seized from the person at the time of arrest.

I used to run piles of motions challenging warrantless cell phone searches, partly because it seemed like a strong Fourth Amendment issue and partly because it was fun to argue that reviewing or intercepting text messages violated state and federal wiretapping laws (and then watch the prosecutor and investigating officer look nervous about whether they’d committed crimes and might be fined).

Then the rotten case of People v. Diaz (51 Cal. 4th 84) came along in 2011. Gregory Diaz was arrested for sale of ecstasy and his cell phone was searched without a warrant, and the California Supreme Court said that it was just fine to search a cell phone “reasonably associated with the arrestee” incident to lawful arrest.  Translation: open season on searching cell phones in California. (After Diaz, the California Legislature passed a bill requiring the police to obtain a search warrant before searching the contents of any portable electronic devices, including cellular telephones. Gov. Brown vetoed the bill and kicked the issue back to the courts.)

For two years I’ve been feeling defeated and perhaps lagging in filing as many motions as I should in the fight against warrantless cell phone searches.

A February California case, People v. Riley, followed Diaz in ruling that the defendant’s cell phone was properly searched incident to his arrest, In Riley, San Diego police used photos and videos stored on a smartphone to link the phone’s owner to a criminal gang.  Riley didn’t cause much stir and wasn’t even published. Kind of a yawn at the time, honestly. Then, in May, a First Circuit Court of Appeals case (U.S. v. Wurie) ruled a warrantless cell phone search unconstitutional. Suddenly there’s a split on the issue and a much stronger argument for SCOTUS review.

Now I’m fired up, re-energized by the possibility that Jeffrey Fisher of the Stanford Law School Supreme Court Litigation Clinic (yes, the force behind Crawford v. Washington and Melendez-Diaz v. Massachusetts, in which Fisher persuaded the Court to adopt a new approach to the Confrontation Clause) may have the magic touch to get People v. Riley to SCOTUS (docket here). Now this unpublished California case has briefs piling up from Fisher and NACDL and others, and speculation is strong that SCOTUS will review Riley.

“A cellphone nowadays is a portal into our most sensitive information and the most private aspects of our lives,” says Jeffrey Fisher, lead attorney for David Riley. “It’s also a device that is the gateway to your office, health records, bank records.”

In the summary of the brief filed by NACDL in Riley, the role of the modern smartphone is addressed: “The Supreme Court should grant the petition for writ of certiorari because the smartphone has assumed a unique role in modern society. The modern smartphone is a historically unique device with profound societal implications. Distributed computing and cloud data give mobile computing infinite capacity. Smartphone usage is now societally ubiquitous. This case presents the best vehicle for this Court’s analysis. The smartphone in this case, unlike the phone in Wurie, may possess First Amendment overtones affecting the Fourth Amendment analysis. Lower court divisions make this the right time for this Court to consider the issue. The nature and societal use of mobile data compels the result that the Fourth Amendment prohibits the warrantless search of the data of a cell phone incident to arrest.”

“The question is, is there something fundamentally different about electronic devices, given the quality and quantity of information found on them,” said Catherine Crump, a staff attorney for the American Civil Liberties Union.

In Riley v. California, lawyers for the appealing defendant argue that cellphone searches without a warrant are unreasonable and violate the Fourth Amendment. I agree and hold out hope that SCOTUS will too. If you carry a cell phone, this matters to you.

As a general principle, I believe that the accuracy of criminal justice outcomes increases as forensic science advances. However, new or novel methods and technologies shouldn’t be rushed into court prior to full vetting.  The post-conviction exoneration cases reveal that unreliable forensic evidence is a primary cause of wrongful conviction.  Appropriate scrutiny at the trial stage will reduce this problem.

Each new forensic method/technology needs to be reviewed and validated before being admitted as trial evidence.  The vetting process should be transparent and open, not secretive. I have had the experience of receiving stacks of computer generated “findings”  or “results” from a prosecutor, asking for the software or methodology that generated the records, and getting the reply “it’s some kind of proprietary software .”  In such situations, we are asked to accept technology without being able to question how it works.

True Allele, a new computer-assisted technology is being offered as prosecution evidence in a New York murder case. This DNA mixture analysis uses mathematical formulas to pinpoint individual human DNA on an item that may have been touched by many people.

However, the software prosecution expert Perlin uses “is largely secretive and needs more vetting by independent scientists.” Further, “since 2004, the New York State Police has paid $3.32 million to Perlin’s company, Cybergenetics.” http://ow.ly/oXRqM

This technology cannot be offered as accurate while the software remains secret. As stated by UC Irvine professor of criminology William Thompson: “there needs to be consideration by independent scientists on whether the method has been adequately validated.” http://ow.ly/oXRqM