Ear ID evidence helps secure murder conviction

The police were fairly certain that Geoffrey Lavar Lawson was the triggerman during an armed robbery of a Genesee County party store.

A video surveillance tape showed that someone jumped up on the store’s counter, put his arm over the bulletproof glass and pointed a handgun at the clerk. The clerk gathered up money from the registers and handed it over. The man on the counter then shot and killed the clerk.

The video apparently wasn’t clear enough to identify Lawson as the man on the counter.

But there was a clear image of the man’s ear.

The prosecution brought in Dr. Norman Sauer, a forensic anthropology expert. Sauer selected various images of ears from the surveillance video. Then he had a videographer film defendant’s left ear. Sauer made side-by-side comparisons of ears from the surveillance video with the images of Lawson’s ear. Sauer could not find any differences between Lawson’s ear and the ear on the surveillance video.

Sauer testified that he couldn’t exclude Lawson as the shooter but declined to make a positive identification.

Based on Sauer’s testimony and other identification evidence, a jury convicted Lawson of first-degree felony murder, armed robbery, conspiracy to commit armed robbery and felony firearm.

On appeal, Lawson faulted Sauer’s testimony because there is no scientific basis to support the hypothesis that every ear is unique. He argued that ear identification is not generally accepted unless there is a unique or individual characteristic. He pointed to a Washington Court of Appeals case, State v Kunze, 97 Wash App 832, 855; 988 P2d 977 (1999), in which a conviction based on a latent ear print was reversed because of the uncertainty in clinically reproducing the conditions that created the latent print.

Lawson’s case is different, ruled the Michigan Court of Appeals.

The same limitations are not present in photographic comparisons. To make an accurate photographic comparison, one must attempt to best duplicate the surveillance images, and that process does not present a risk of distorting an image. Rather, it simply makes a photographic comparison more accurate and reliable by trying to match perspective.

So, Mr. Lawson, listen up, said the COA.

We conclude that the admission of Dr. Sauer’s testimony was neither an abuse of discretion nor a plain error. The methodology employed Dr. Sauer is not new or novel science, and there is nothing inherently unreliable in pointing out similarities in the morphologic features of an ear. Dr. Sauer also did not make a positive identification. As such, defendant cannot show that he suffered plain error, or that his trial counsel was ineffective for failing to object to Dr. Sauer’s testimony.

The unpublished case is People v. Lawson.

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New law: Experts can testify by video with parties’ consent

Expert witnesses can testify at criminal and civil trials via two-way interactive video under 2012 PA 68, signed into law by Gov. Rick Snyder.

Under MCL 600.2164a

(1) If a court has determined that expert testimony will assist the trier of fact and that a witness is qualified to give the expert testimony, the court may, with the consent of all parties, allow the expert witness to be sworn and testify at trial by video communication equipment that permits all the individuals appearing or participating to hear and speak to each other in the court, chambers, or other suitable place. A verbatim record of the testimony shall be taken in the same manner as for other testimony.

(2) Unless good cause is shown to waive the requirement, a party who wishes to present expert testimony by video communication equipment under subsection (1) shall submit a motion in writing and serve a copy of the motion on all other parties at least 7 days before the date set for the trial.

(3) A party who initiates the use of video communication equipment under this section shall pay the cost for its use, unless the court otherwise directs.

The law takes effect June 1 and applies to cases filed on or after that date.

The Prosecuting Attorneys Association of Michigan backed the new law. The State Bar of Michigan Board of Commissioners supported the bill in concept but would have preferred implementation either by a court rule or rule of evidence promulgated by the Michigan Supreme Court.

The measure is expected to reduce travel time and expenses associated with using expert witnesses.

MSC stays precedential effect of COA suspended-license case

The Michigan Supreme Court has stayed the precedential effect of a Court of Appeals decision that requires county prosecutors trying driving-with-suspended-licenses cases to produce at trial the state clerks who mailed the suspension notices to the defendants.

In People v. Nunley (majority opinion) (dissenting opinion), the COA reasoned that proof of notice to defendants is an element of the crime. As such, a certificate that the notice was mailed is testimonial and Confrontation Clause principles apply. Those principles include the right to confront in court the person who mailed the certificate.

Michigan Attorney General Bill Schuette was granted intervenor status in the case. His motion to stay the precedential effect of the case and to enlarge the record on appeal was granted in a MSC order released Dec. 2.

For an analysis of the COA’s opinion in Nunley, see “Mailing certificate testimonial, state clerk must appear at trial,” which appeared in our Oct. 21 issue.

The Washtenaw County prosecutor’s application for leave to appeal remains pending.

Proposed MCR amendment: Exhibits would stay with trial court

Trial courts would become the repositories for all trial exhibits, whether admitted into evidence or not, under a proposed amendment to MCR 7.210.

MCR 7.210(C)’s current language would be struck and replaced with the following:

The trial court or tribunal shall retain originals or legible copies of all documentary, photographic, video, or audio exhibits offered in evidence, whether admitted or not.

If no claim of appeal has been filed upon expiration of the time for doing so, the trial court or tribunal may return such exhibits to the parties who offered them.

By stipulation of the parties or order of the trial court or tribunal, exhibits in other forms may be returned to the parties who offered them.

Appellants are entitled to access the exhibits or proposed exhibits that are not in documentary, photograph, video, or audio form upon a showing of good cause and the filing of a motion seeking such access within the time for filing appellant’s brief on appeal.

When the record is returned to the trial court or tribunal, the trial court or tribunal clerk shall return the exhibits to the parties who filed them.

The amendment was proposed by James Neuhard, former director of the State Appellate Defender Office.

See ADM File No. 2010-25 for details and information about submitting comments on the proposed rule change.

District court judge: State lab DUI tests ‘not reliable’

The Lansing State Journal reports this morning that 79th District Court Court Judge Peter Wadel has refused to admit blood-alcohol test results from the state crime lab in a drunken-driving case, saying that the lab’s test results “are not reliable.”

From the LSJ:

[Wadel] said the crime lab — which conducts blood and other forensic tests in cases from around the state — does not report an error rate, or margin of error, along with blood-alcohol results.

Police routinely report a single number for blood-alcohol content in drunken-driving cases. But East Lansing attorney Mike Nichols, who is handling the case in Mason County — which includes the city of Ludington along Lake Michigan — said there are no absolutes in science.

“Everyone says a blood test is so accurate. Well, it’s not,” Nichols said. “That’s what this judge has ruled.”

Not including a range of possible results, Nichols said, ignores the uncertainties in the collection, handling, analysis and reporting process.

Here’s the full story from LSJ reporter Kevin Grasha.

SCOTUS vacates MSC Confrontation Clause ruling

The U.S. Supreme Court has ruled, in Michigan v. Bryant, that the Confrontation Clause was not violated when police testified at trial that a gunshot victim identified his shooter in response to police questioning.

The Court, in a 6-2 decision, vacated the Michigan Supreme Court’s contrary conclusion (People v. Bryant).

Covington was shot outside of Bryant’s house and managed to drive himself to a gas station. Someone called the police, who arrived before the medical responders. The police asked Covington, who was in great pain and having trouble breathing, who shot him. Covington named Bryant as the shooter. Covington died a few hours later.

The police testified at Bryant’s trial that Covington identified Bryant. Bryant was convicted of second-degree murder.

The MSC reversed the conviction, ruling that Covington’s statements were inadmissible testimonial hearsay.

The U.S. Supreme Court ruled that the statements were not testimonial, and vacated the MSC’s decision.

The Court, citing Davis v. Washington, 547 U. S. 813 (2006), said the circumstances, viewed objectively, showed that

Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose … to enable police assistance to meet an on-going emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’ s trial did not violate the Confrontation Clause.

When Covington responded to questions from the police

he was lying in a gas station parking lot bleeding from a mortal gunshot wound, and his answers were punctuated with questions about when emergency medical services would arrive.

Thus, this Court cannot say that a person in his situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” …

For their part, the police responded to a call that a man had been shot. They did not know why, where, or when the shooting had occurred; the shooter’s location; or anything else about the crime.

They asked exactly the type of questions necessary to enable them “to meet an ongoing emergency.” …

“Nothing in Covington’s responses indicated to the police that there was no emergency or that the emergency had ended. …

The officers all arrived at different times; asked, upon arrival, what had happened; and generally did not conduct a structured interrogation.

“The informality suggests that their primary purpose was to address what they considered to be an ongoing emergency, and the circumstances lacked a formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements.

The Court vacated the MSC’s decision.

We leave for the Michigan courts to decide on remand whether the statements’ admission was otherwise permitted by state hearsay rules.

In their opinions

“[N]o constitutional principle … allows a criminal defendant to defend one criminal charge by urging his lawyer or witness to commit another. Otherwise, an individual on trial for a murder-by-stabbing charge could try to prove that the knife was not long enough to kill someone by using it to stab someone else in the middle of the trial.”

– 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, explaining in Doe v. Boland, et al., why an expert witness is not immune from the civil remedy provisions of federal child pornography laws.

The expert, Ohio attorney Dean Boland, created child pornography to demonstrate the difficulty of establishing “knowing” possession of child pornography. “The aim was to show it would be ‘impossible for a person who did not participate in the creation of the image to know [the child depicted is] an actual minor.'”

Boland created the images, forbidden by 18 U.S.C. § 2252A(a)(5)(B), by downloading pictures of children from a stock photo web site and then electronically “morphing” the pictures into images of adults engaged in very adult activities.

The children’s parents sued Boland “under 18 U.S.C. § 2252A(f) and § 2255, which respectively provide civil remedies to ‘any person aggrieved’ and to minor victims who have suffered ‘personal injury’ from a violation of 18 U.S.C. § 2252A(a).”

The federal district court dismissed the case but the Sixth Circuit reversed. Writing for a unanimous panel, Sutton noted that the federal civil remedy statute does not contain an expert witness exception. Moreover, wrote Sutton, Boland

could have illustrated the difficulty of discerning real from virtual images by combining two innocent pictures into another innocent picture.

Or, if Boland wished to use pornography to make the point, he could have morphed an image of an adult into that of a minor engaging in sexual activity. Boland indeed did the latter as part of his preparations, and had he stopped there we would not be here.

These images are not prohibited by federal law, see 18 U.S.C. § 2252A(c), and are protected by the First Amendment to the extent they are not obscene … .

Boland did something else. He morphed images of minors into pornography, images that “implicate the interests of real children.” …

The law expressly covers such images, 18 U.S.C. § 2256(8)(C), and the reality that Boland himself did not “use” real children to produce the images makes no difference … .

On remand, the federal district court will consider Boland’s argument that the children have not suffered “personal injury” under § 2255.

The parties have stipulated that the children are, mercifully, unaware of the created images.