Court Says: Intoxilyzer 8000 Vulnerable.

If you haven’t heard, the Ohio Department of Health approved the Intoxilyzer 8000 and the state of Ohio then purchased 700 of the instruments.  Now it seems maybe the state should have waited for an analysis as was done by the Athens County Municipal Court in State v. Gerome, Trial Court Case Number 11TRC01909.  Therein the trial court heard arguments in four consolidated OVI cases which involved the use of the new – some say untested – Intoxilyzer 8000.  

After an extensive evidentiary hearing including multiple expert witnesses for both the prosecution and the state, the court concluded that “The Intoxilyzer 8000 has vulnerabilities.  With specific fact situations, defense expert testimony is admissible to explain such relevant vulnerability.”  This is significant as the trial court had to have a meaningful understanding of the Ohio Supreme Court’s decision in State v. Vega; and thereafter demonstrate the very real distinction.  In Vega, the Ohio Supreme Court held, in general terms, that a defendant cannot challenge the general principles that underlie breath testing instruments.  This created a very real problem for those charged with a DUI/OVI offense in Ohio in that Ohio also had per se DUI/OVI violations which makes a high testing reading alone a criminal violation.  

With the introduction of the Intoxilyzer 8000, the real problem with Vega was immediately apparent.  The prosecution would rely on the Vega opinion to argue that the defense was not permitted to challenge the new instrument.  The Athens County Trial Judge thought different and allowed the pre-trial evidentiary hearing on the machine.

Thankfully he did.  After a full evidentiary hearing with experts witnesses for both the prosecution and the defense, the trial court specifically found that “[d]efendant has presented evidence of several vulnerabilities [of the Intoxilyzer 800] and the Court understands and accepts two and possibly three as material to admissibility and to guilt.”   In short, the Court found:

1.       That the machine remained vulnerable to radio frequency interference which is a danger even more prevalent now than it was when the breath technology came into common use.

2.       That the machine allows the operator to manipulate the breath sample which is a danger in that “the longer you blow, the higher your score.”  The court cited an example that “on average, a shorter duration sample could show a 0.68 and a longer duration sample could show a 0.85 with the same alcohol content.”

3.       The machine has a reduced capacity to detect a sample that includes moisture.  This is critical in that the theory with the technology is that it tests “deep lung air rather than air from the mouth or other moist tissues that would include liquid ethanol at a higher concentration than breath.”

The trial court’s decision is just that, namely a trial court decision in one municipal court in the entire state of Ohio.   But the court’s analysis was remarkable, especially as it was based on an evidentiary hearing which included highly regarded expert witnesses on both sides of the matter.  It’s value as persuasive authority cannot be ignored.

Mootness Kills Camreta.

You’ll remember my prior blog post about the decision of the Federal Ninth Circuit Court of Appeals in Camreta v. Greene.  You’ll also remember my comment that “should the Court reach a decision on the merits, the opinion could be far reaching.”  Well, the Court didn’t and the opinion isn’t.  Ultimately, on May 26, 2011, the United States Supreme Court issued it’s opinion finding that there was no longer a case in controversy in the matter.  The lower court was reversed.

The opinion is significant on this point.  The case is interesting in that the appellant-Oregon Department of Human Services case worker prevailed at the trial court and court of appeals on the issue of qualified immunity.  So, despite the ruling that the Department had unlawfully seized the child absent a warrant, the qualified immunity ruling made the social worker the prevailing party.  In such instances, the prevailing party must demonstrate a “personal stake” in the suit to allow it to continue.  Both parties must maintain an ongoing interest in the dispute both at the trial and throughout the appeal.  

As happenstance would have it, in this case, the “child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue.”  563 U.S. ____(2011)  This is significant to the opinion’s value as a precedent elsewhere.  The Court ultimately reasoned that “[w[hen a civil suit becomes moot pending appeal, we have the authority to ‘direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances. *** Our ‘established’ (though not exceptionless) practice in this situation is to vacate the judgment below.”   That is just what occurred here; the United States Supreme Court reversed the finding by the Federal Ninth Circuit Court of Appeals that found the Fourth Amendment violation because the child had grown and moved away.

That said, the reasoning and briefing in the Fourth Amendment analysis aspect of the case remains compelling.  There is much to be argued that social workers should not be permitted to interview children without either a warrant or the consent of the parent.  This is especially so with children as children demand particularly sophisticated methods of interview so as to protect the evidence from unfair – and at times unlawful – coercion or leading. 

I'll Never Forget That Face - In Ohio.

Modern science instructs that memory is not the concrete vault that an average person would believe, but instead, it is a fluid process that is easily manipulated.  The works of Dr. Elizabeth Loftus and her studies in repressed memory and implanting false memories are so very instructional on the issue.  Unfortunately, mistaken eyewitness identification is a leading cause of wrongful convictions. The Innocence Project reports that “Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.”  http://www.innocenceproject.org/fix/Eyewitness-Identification.php  Even the National Institute for Justice of the U.S. Justice Department has recognized the need for eyewitness identification reform. http://www.nij.gov/nij/topics/law-enforcement/investigations/eyewitness-identification/welcome.htm

In large part because of the work of the University of Cincinnati College of Law, the Ohio General Assembly enacted S.B. 77 which became effective on July 6, 2010.  Now found in R.C. 2933.81 to .831, Ohio mandates specific procedures for recording interrogations, and conducting photo arrays and lineups.  The statutes require that photo lineups be conducted by a “blind administrator.”  The administrator will read a set of instructions and distribute certain folders to the witness.  Five of the folders will contain photographs of non-suspects, one of the suspect, and four blank photographs.  All of the photographs are placed in folders and numbered specifically according to R.C. 2933.83(A)(6)(c) and (d).  R.C. 2933.83(A)(6)(i) specifically instructs that the officer “shall not say anything to the eyewitness or give any oral or nonverbal cues.”

Unfortunately, the statute does not go far enough for protecting the trial from evidence gathered not in compliance with the statute.  Instead of mandating that such evidence be excluded, R.C. 2933.83(C) goes only so far as to instruct that the evidence of a failure to comply with the statute is admissible at trial.  One would think, that if the danger of wrongful convictions from mis-identification is important enough to legislate specific protections, the danger of mis-identification should also require exclusion from evidence of any identification that does not comply with the statute’s mandates.

That said, the statutes do also serve to emphasize to everyone involved in such identifications of the inherent unreliability of eyewitness identification.  This includes defense counsel who must take extra effort to ensure such identifications are reliable.

Where Do Parents Rate?

Parents that have ever been on the receiving end of an investigation by social worker or agent of the local child services organization, or Department of Job and Family Services in Ohio, will describe their desperate feeling of helplessness.  The great amount of statutory extra-judicial authority given these departments is nothing short of shocking to parents confronted with demands from the child services agents.  They are exponentially outraged when they discovery their children have been interviewed by such agents without parental consent.

Child services across the nation are now re-evaluating their child interview practices in light of the decision of the Federal Ninth Circuit Court of Appeals in Camreta v. Greene. In the case, the Oregon Department of Human Services received a report of alleged abuse against a nine-year old child by a parent.  A department caseworker and local police officer decided to interview the child at school, without parental consent or a warrant. The charges against the child's father, Mr. Greene, were dismissed.  The family then filed a Section 1983 lawsuit against the caseworker and officer for violating her daughter's Fourth Amendment right against unreasonable search or seizure   The Ninth Circuit Court of Appeals found a violation by applying the traditional probable cause warrant requirement as opposed a reasonableness balancing test.  Camreta, the social worker, claimed the analysis should instead be the reasonableness balancing test which has been the analysis where the invasion is something less than an arrest, for instance a less intrusive Terry stop which only requires reasonableness.

It is certainly exciting that the United States Supreme Court had agreed to hear the case, in other words, it granted certiorari which is an order to the lower court that it shall review the decision.  Oral arguments were had before the high court on March 1, 2011.  The actual oral argument recording can be heard at http://www.oyez.org/cases/2010-2019/2010/2010_09_1454/argument.  Those hoping for an opinion from the Court on the merits, may be disappointed.  A great portion of the dialogue in the case addressed the question as to whether the opinion had an current justiciable claim or a live case or controversy. It seems the Greene family and the child had since moved from the state of Oregon.  Some members of the Court wondered how the Court might dispose of the case if there is no longer a case pending below as the lower court found in favor of sovereign immunity for the social worker.

Should the Court reach a decision on the merits, the opinion could be far reaching.  There were multiple questions which specifically inquired about at what length of time does an interview amount to a seizure and at what age a child has a capacity to consent to the seizure.  In Ohio, the police are permitted to interview children without a Miranda waiver executed by both the child and the parent, which is known elsewhere as the “independent advice/interested adult standard.”  If the Court issues an opinion on the merits, the reasoning of the Court will certainly have a remarkable effect on other such standards relating to investigations involving children.

When a One Act “Course of Conduct” Can Amount to a Miranda Waiver.

American criminal law seems to  discuss “a course of conduct” whenever it needs to include facts that damage the defense.  It was only a matter of time that one action during one encounter with one law enforcement official would become a “course of conduct.”  The United States Supreme Court found as much last year when it decided the Miranda  case of Berghuis v. Thompkins (2010), 130 S.Ct. 2250 in a 5-4 vote.  At its heart, Berghuis was deciding whether suppression was required where a suspect made a statement but neither invoked nor waived his Miranda rights.  The Miranda  question accepted by the Supreme Court was specifically: Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.  It was the “did not invoke them but did not waive them” that drove the opinion and really makes the case so significant.

Thompkins was arrested as a suspect in a murder.  He was Mirandized, but declined to sign the form and there was conflicting evidence as to whether he verbally confirmed he understood his rights.  Id. at 2256.  Sadly, the Court seems to overlook that the officer gave conflicting testimony during the suppression hearing testifying that the defendant read the rights back to him, but at trial testifying that he did not recall whether he had asked him to verbally acknowledge whether he understood his rights.  On evidence so critical, the officers changing position received only a parenthetical – literally it was only a parenthetical in the opinion.

For two hours and 45 minutes of the interrogation, Thompkins remained silent and refused to answer any question, but never verbally invoked his right to remain silent.  Critics will obviously argue that remaining silent would be sufficient evidence of invoking the right to remain silent.  After two hours and 45 minutes of silence, in an 8 by 10 room and subject to repeated questions by the investigators, he answered this question, “do you believe in God?”   Then he answered, “do you pray to God?”  Then, of course, he answered “yes” to “do you pray to God to forgive you for shooting that boy down?”  The conviction soon followed.  

The opinion does reference the acquittal of a co-defendant and some other conflicting testimony about co-defendants.  This is ultimately the danger of every criminal case.  If it was inappropriate as a matter of law to allow into evidence the statements recovered after nearly three hours of interrogation and this evidence led to a wrongful conviction, that is the real tragedy everyone in the criminal justice system should hope to avoid.

 

The United States Supreme Court analyzed whether Thompkins had invoked his right to remain silent.  The Court acknowledges that for the two hours and 45 minute interrogation he remained silent.  This might sound like a “course of conduct” to the lay reader.  That said, he ultimately did answer those three questions about his faith.  Instead of relying on the two hour and 45 minute course of silence to find a course of conduct that invoked the right to remain silent, the Court found the answers to the three questions as a “course of conduct” which would waive the right to remain silent.  The Court found “[t]he fact that Thompkins made a statement about three hours after receiving his a Miranda  warning does not overcome the fact the he engaged in a course of conduct indicating waiver.”  Id. at 2263.  

The Court itself acknowledged the plain language of Miranda which directs that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the facts that a confession was in fact eventually obtained.”  Id. at 2261, citing Miranda v. Arizona (1966), 384 U.S. 436, 475.  The Court went on to also emphasize the settled case law that from Miranda that the “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently” made a waiver.  Berghuis at 2261, citing Miranda at 475.  Despite this settled law, the Court found a waiver after three hours of silence.

Now, three simple “yes” answers after three hours of silence under interrogation can amount to a “course of conduct” which indicates the suspect’s intelligent decision to waive his Miranda rights.  The Court rejected the dissent’s position that three hours of silence was a course of conduct evidencing that the suspect was invoking his right remain silent.  As the dissent described it, a defendant “who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak[.]”