Pace Law’s Distinguished Fellow in Criminal Justice Mimi Rocah recently appeared on the “Law & Crime” network to discuss the government’s use of a cooperating witness with host Caroline Polisi. Ms. Rocah explained the process of using a cooperating witness in a federal prosecution. Although a cooperator must first plead guilty to the highest possible crime (and possibly other unrelated crimes), the incentive to cooperate in a federal investigation is significant. If the government finds that the cooperator has information against more culpable parties and they testify truthfully, the government will ask the judge to sentence the cooperator below the mandatory minimum under the sentencing guidelines. See the interview here.
WRITTEN BY: Sally Phillips, Ph.D. Candidate at School of Law, Birmingham City University, United Kingdom.
Sally Phillips is a second-year Ph.D. student with the law school at Birmingham City University, UK. Her research focus is on the intersection of science and law, particularly in cases concerning Shaken Baby Syndrome/Abusive Head Trauma. Coming from a background in Criminology and Forensic Studies with a firm foundation in the natural sciences, she has a great interest in the use of science in criminal prosecutions and the judicial response to this complex juncture of disciplines.
The ‘traditional hypothesis’ of “Shaken Baby Syndrome” (SBS) surmises that if a child were to present with a brain bleed and bleeding behind the eyes, but was absent a history of accidental trauma, then that child had likely been violently shaken. Despite extensive scientific research, this hypothesis remains subject to significant criticism which suggests the underpinning science is uncertain and that some SBS diagnoses may be inaccurate. This debate has generated tensions amongst medical professionals and in criminal proceedings involving medical evidence of the diagnosis. In the UK, in 2016, neuropathologist Dr. Waney Squier had her medical licence revoked (and subsequently reinstated on appeal, with a 3-year ban on testifying), for her part as a defense expert in SBS cases. Additionally, convictions have been overturned and charges dropped in prosecutions in both the US and England and Wales, due to perceived uncertainty in SBS. Despite similarities in criminal justice processes in these two jurisdictions, their response to this alleged uncertainty has differed. To put these responses into context, a closer look at the science is warranted.
A review of relevant scientific literature highlights five areas of significant debate. These areas are reflected in US and English case law, as key points of contention between defense and prosecution. First, is the important question of what level of force is sufficient to produce the SBS-associated injuries. Although, some argue that an individual cannot shake a baby hard enough to harm it, most accept that shaking is a dangerous practice. Experiments using animals, dummies and computational models continue to better simulate a live infant, but so far no certain answer can be given about exact levels of force needed to cause SBS (Nadarasa et al., 2014).
Second, the possibility of a period where the child appears ‘fine’ after shaking, has been discussed. The defendant in SBS cases will almost always be the individual with the child when they became symptomatic (known as collapse), so the possibility of this ‘lucid interval’ raises the question of potential alternative perpetrators who have cared for the child in the days or hours leading up to collapse. However, the evidence suggests lengthy, non-symptomatic, lucid intervals are extremely rare (Arbogast et al, 2005).
Third are theories that suggest an innocent explanation for just one SBS symptom, of which there are many. Although a child is unlikely to have three innocent explanations for the three individual symptoms, this is a possibility which needs to be ruled out in each case. Many natural diseases and accidental injuries have potential to cause injuries that appear to mimic those seen in SBS. However, these are often testable and distinguishable if investigated thoroughly (Jenny, 2014).
The fourth category of uncertainty is closely related to the third – the possibility that a single innocent explanation triggered all three symptoms. Events such as severe coughing, seizures or forceful vomiting have been considered in the literature. Aside from a few case reports, these theories are presently unsubstantiated. It is for this reason that the fifth category of debate is key. This is whether diagnostic procedures are adhered to closely enough to effectively apply current scientific knowledge clinically, preventing misdiagnoses. The standardisation and efficacy of proper diagnostics cannot be underestimated when cases of potential SBS are brought to physicians.
This evolving and uncertain science does not fit harmoniously with the rigid, process-driven attitude of criminal justice. More technologically-aware juries expect scientific evidence in criminal trials, and lawyers perceive a need for increasingly captivating and certain science in order to obtain convictions. These expectations and perceptions may stem from knowledge of examples where science, such as DNA technology, has been invaluable in prosecutions. However, often science and law are not congruent. This has been attributed to differing approaches of law and science to finding ‘truth’ (Jasanoff, 2005). While science builds corroboratively to generate evidence that can be generalized and expanded upon, law is concerned with conclusive end-points in the narrow context of a particular case. In science, an inconclusive result is unsatisfactory, but does not carry the same consequences as in criminal proceedings, where a conviction must be conclusive “beyond reasonable doubt.”
The practical consequences of this tension, is that when experts testify in criminal cases, their language and reasoning may not be translating accurately to judges, lawyers and juries. For example, the phrase, “reasonable degree of medical certainty” is a common one in expert medical testimony, but is not used in normal clinical practice. There is evidence to suggest that experts understand and use this phrase to describe a different level of certainty, with some believing it to be close to 100%, while others see it as 50% or more (Gena, 2007). Faulty translations like this, can be misleading for a jury and only exacerbate the areas of uncertainty in SBS.
The Case Law
In the US, the judiciary has employed avoidance techniques in response to much scientific debate. A strict adherence to finality interests and legal process often trumps any substantive examination of contentious scientific evidence. Trial judges are charged with assessing reliability of expert testimony under Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). Daubert’s criteria was carefully considered by the Law Commission in England and Wales (Law Commission, 2011). However, as the Law Commission noted, there is still significant confusion and inconsistency if and/or when Daubert is applied. Daubert urges courts to take a more active role in dealing with science, but there is clear discomfort when it comes to applying the guidelines in a way which involves a thorough examination of scientific concepts.
Review of the US appellate opinions reveals increased awareness of scientific issues in SBS cases. However, when it comes to a critical examination, judges will focus on legal frameworks, but pay little attention to the application of them to SBS. A range of arguments are used to dis-apply reliability frameworks, such as Daubert, leaving SBS testimony to enter court un-examined. Judgement of reliability is often left to the jury, as judges will conclude that flaws in expert testimony go to the weight, not admissibility of the evidence. Appeals will often focus on procedural claims, allowing the judiciary to bypass critical scientific examination in favour of procedural analysis. Cases which confront the science head-on are few and far between, and often overruled.
In England and Wales, courts have made more concerted attempts to address the problem. Extensive opinions, such as R v Harris and Others  EWCA Crim 1980 and R v Henderson and Others  EWCA Crim 1269, probe deeper into SBS and this has resulted in specific CPS guidelines being issued for cases of Non-Accidental Head Injury (a broader term for SBS). These guidelines caution against the bringing of prosecutions solely based upon SBS injuries, and advise that other supporting evidence such as broken bones, bruises or confessions be present before a case is prosecuted. There is also guidance in place by way of the Criminal Procedure Rules and Practice Directions, which list factors that may render expert testimony reliable.
The courts should not be expected to ultimately resolve the current scientific debate in SBS; however, they cannot ignore the issue altogether. Stakeholders across the scientific and legal communities must develop and apply guidelines that keep unreliable science from entering the courtroom. A failure to do so will continue to result in wrongful convictions.
References and Further Reading:
- Arbogast, K., Margulies, S. & Christian, C., Initial Neurologic Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries, 116 Pediatrics 180 (2005).
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
- Gena, M., Shaken Baby Syndrome: Medical Uncertainty Casts Doubt on Convictions, 2007 Wisconsin Law Review 701.
- Jasanoff, S., Law’s Knowledge: Science for Justice in Legal Settings, 95 American Journal of Public Health s49 (2005).
- Jenny, C., Alternate Theories of Causation in Abusive Head Trauma: What the Science Tells Us, 44 Pediatric Radiology 543 (2014).
- Law Commission, Expert Evidence in Criminal Proceedings in England and Wales (Law Com. No. 325) (2011).
- Nadarasa, J., Deck, C., Meyer, F., Willinger, R. & Raul, J., Update on Injury Mechanisms in Abusive Head Trauma – Shaken Baby Syndrome, 44 Pediatric Radiology 565 (2014).
- R v Harris and Others,  EWCA Crim 1980.
- R v Henderson and Others  EWCA Crim 1269.
Last week, in Molina-Martinez v. United States, the Supreme Court rejected a narrow interpretation of the plain error doctrine that would require a defendant sentenced under the wrong guideline range, but whose sentence would have been within the proper range, to show “additional evidence” beyond the plain error, that the error violated his substantial rights.
In Molina-Martinez, the defendant pled guilty to a crime that appeared to have a guidelines range of 77-96 months and he was sentenced to 77 months. On appeal, he argued for the first time that the District Court miscalculated his Guidelines range, which should have been 70 to 87 months. The Fifth Circuit agreed but held that the defendant could not satisfy the plain error requirement (F.R.Cr.P. Rule 52(b) – an obvious error that affects “substantial rights.”). It reasoned that a defendant whose sentence falls within what would have been the correct Guidelines range must, on appeal, produce “additional evidence” to establish beyond the mistake itself to show that the error affected his sentence. Based on earlier Fifth Circuit caselaw, if a defendant’s ultimate sentence falls within what would have been the correct guidelines range, the defendant must identify “additional evidence” to make that showing.
Most Courts of Appeals have adopted a less demanding standard under which a district court’s mistaken use off the wrong guidelines rang can itself serve as evidence of an effect on substantial rights, without more. See, e.g., United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014) (application of an erroneous Guidelines range “‘runs the risk of affecting the ultimate sentence regardless of whether the court ultimately imposes a sentence within or outside’” that range) (emphasis added); United States v. Vargem, 747 F.3d 724, 728–29 (9th Cir. 2014); United States v. Story, 503 F.3d 436, 440 (6th Cir. 2007). These courts recognize that, in most cases, when a district court uses an incorrect range, there is a reasonable probability that the defendant’s sentence would have been different without the error. The Supreme Court agreed, and rejected the “additional evidence” requirement for plain error review.
- Molina-Martinez v. United States, No. 14-8913, 2016 WL 1574581 (U.S. Apr. 20, 2016) (Court’s Official PDF).
- Molina-Martinez v. United States SCOTUS page.
- United States v. Martinez-Molina, 588 Fed. App’x 333 (5th Cir. Dec. 17, 2014).
- United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014).
- United States v. Vargem, 747 F.3d 724, 728–29 (9th Cir. 2014).
- United States v. Story, 503 F.3d 436, 440 (6th Cir. 2007).
- United States Sentencing Commission, Guidelines Manual – 2015 Version.
Right on the heels of the highly publicized conviction of former New York Assembly Speaker, Sheldon Silver, former New York State Senate Majority Leader, Dean Skelos, and his son, Adam Skelos, were found guilty on federal corruption charges, including bribery, extortion, and conspiracy.
Dean Skelos used his position of power and authority to secure his son, Adam, consulting work and “no show” jobs at a real estate firm, environmental technology company, and a medical malpractice insurer. Adam netted approximately $300,000 from his father promising employers, among other favors, “preferential legislative treatment,” as one of the “three men in the room” that determine the state budget. Despite the easy monetary windfall he received from his father’s connections, Adam was indifferent, and oftentimes downright belligerent, at the suggestion that he should actually work at these jobs. Christopher Curcio, Adam’s supervisor at the medical insurance company, recalled Adam’s response to Curcio’s request that he log in some hours in the office. “He said, ‘Guys like you couldn’t shine my shoes…If you talk to me like that again, I’ll smash your f–kin’ head in.” After a slew of overwhelming evidence, including cooperating witnesses, emails, and wiretaps between the father and son duo, a jury found both men guilty of all eight counts after a total of eight hours of deliberation.
The conviction was a huge victory for the Southern District of New York’s United States Attorney, Preet Bharara, who tweeted, “How many prosecutions will it take before Albany gives the people of New York the honest government they deserve?” Bharara’s question is one that many New Yorkers have asked over the years and optimistically, it looks like it may be answered soon.
While there have been missteps during the prosecution of corrupt political figures in Albany – the Skelos investigation was commenced by Governor Andrew Cuomo’s anticorruption panel, the Moreland Commission, which was created in July 2013 but subsequently disbanded nine months later – the trial and conviction of the Skeloses, and its temporal overlapping with Sheldon Silver’s trial, suggest a strong change in the tides for the United States Attorney’s Office. While drug offenses remain the most frequently prosecuted crimes in the United States federal courts, accounting for 31% of all defendant filings in 2014, there is also a steady decrease in the prosecution of these crimes. Drug offense prosecutions have dropped approximately 14% last year, while immigration offenses, the second most frequently prosecuted crime in federal court, declined by 8%. The Southern District of New York also boasts a shockingly high conviction rate across the board – over 95% of all criminal cases result in a plea of guilty. In light of their conviction rates and the steady decline of the two more frequently prosecuted federal crimes, it is fair to assume that the Southern District not only has the resources to take on Albany corruption, but also plays to win.
Just as immigration and drug offenses have been the crux of the Southern District’s prosecution strategy for decades, it seems as though the Skelos and Silver trials are ushering in a new era where political corruption is at the forefront of concern. Hopefully, the Southern District (and by extension, all federal district courts) can use these convictions as encouragement for a task that is well within its powers – in the words of Bharara, to give the people of New York an honest government.
- Sophia Hollander & Kate King, Sheldon’s Silver Conviction Stuns Community Leaders in Assembly District, Wall Street Journal (Dec. 1, 2015).
- William K. Rashbaum & Susanne Craig, Dean Skelos, Ex-New York Senate Leader, and His Son Are Convicted of Corruption, New York Times (Dec. 11, 2015).
- Kyle Smith, The Skelos Trial Feels a Lot Like a Mafia Trial, New York Post (Nov. 19, 2015).
- United States District Courts: Judicial Business 2014.
- United States Sentencing Commission, Statistical Information Packet: Fiscal Year 2014, Southern District of New York.