Tara Reade testified as an expert witness in criminal cases. Defense attorneys now want those cases re-opened.

Defense attorneys representing clients who were convicted in criminal cases are moving to have those cases re-examined and convictions possibly thrown out due to one key element in each case: Tara Reade.

Reade, who also goes by the alias Alexandra McCabe, testified as an expert witness in several California criminal cases over the past decade, offering her experience as a survivor of spousal abuse.

Reade made international headlines in March after she accused presidential candidate and current senator Joe Biden of sexual assault. She repeated the allegation a few weeks later in an interview published by the New York Times. In both interviews, Reade claimed the assault happened while she was working as a campaign staffer at Biden’s Capitol Hill office in the early 1990s. (Biden, who is in the middle of a presidential campaign, denied Reade’s allegation earlier this month.)

As reporters worked through the details of Reade’s allegation, some journalists began fact-checking her time at Biden’s office. Reporters with the PBS NewsHour spoke with more than six dozen people who once worked for Sen. Biden. While some staff members admitted Biden was a “toucher” who sometimes made them feel uncomfortable, no one interviewed by the news organization said Biden had sexually harassed or assaulted them, and all of the former staffers were adamant they had not heard rumors about Biden harassing or abusing others until Reade went pubic with her accusation.

Some reporters dove deeper into Reade’s background, examining her education and work history. One reporter for CNN contacted Ohio-based Antioch University to ask about Reade’s academic record. Though Reade claimed to have received a degree from Antioch University’s Seattle campus, officials with the school said they had no record of her graduating or receiving a degree.

When questioned about her degree status, Reade told reporters she graduated under a special arrangement with Antioch University’s chancellor following a legal name change. An unofficial transcript from Seattle University, where Reade received a separate degree, listed Antioch University as a prior degree-granting institution, according to one report.

But a university official told POLITICO no such arrangement existed. The spokesperson later told the New York Times that they were absolutely certain Reade had not graduated from their school.

That could prove problematic after Reade said, under oath, that she received a degree from Antioch University while testifying as an expert witness in dozens of cases brought in Monterey County, California. Defense attorneys there are now combing through cases connected to Reade’s testimony to see if they can be re-opened based upon these new media revelations.

In one case, Reade not only swore under oath that she received a degree from Antioch University but also claimed to be currently working as a substitute teacher. Employment records obtained by the Times showed she was actually working as a staff assistant.

During the trial, defense attorney Roland Soltesz objected, saying Reade’s work experience didn’t qualify her as an expert witness. The judge overruled the objection. Soltesz’s client was sentenced to several life terms after being convicted of attempted murder, armed robbery and arson, the Times said.

Now Soltesz is seeking to have that case, and possibly others, re-examined.

“People have been convicted based upon this, and that’s wrong,” Soltesz told the newspaper.

While making a false statement during sworn testimony in court is a crime, prosecutors must prove that the person who made the false statement did so with knowledge and intent to deceive. Those elements can be difficult to prove, legal experts say.

But defense attorneys could have an easier time pursuing a reversal of a verdict if they can show that Reade exaggerated her education and employment history — qualifications that once earned her a spot in the witness stand.

“An expert can only testify in certain circumstances,” Sacramento criminal defense attorney Mark Reichel told the New York Times. “One of them is that they have expertise above the regular person. The jury is entitled to hear your qualifications.”

Inauthentic qualifications by an expert witness not only undermines the criminal justice system, it opens the door for a conviction to be overturned. If that happens, some cases may be remanded for a new trial, while other defendants could be set free.

In an interview with the Times, Berkley Brannon, the chief deputy assistant district attorney for Monterey County, said his office would work to contact district attorneys about cases in which Reade testified if it could be proven that she did not earn a degree as she claimed under oath.

“That would absolutely be of concern to us, and it’s something that the defense attorneys would need to know about,” Brannon said. “We don’t want people that we call lying about anything.”

READ MORE

The New York Times:
“As Tara Reade’s Expert Witness Credentials Are Questioned, So Are Verdicts”

The Monterey County Weekly:
“Convictions Could Be Challenged as Defense Attorneys Question Tara Reade’s Credentials”

POLITICO:
“Defense Lawyers Look to Reopen Cases Where Tara Reade Testified as an Expert”

“Bradley Manning Being Mistreated” U.S. State Department Spokesperson Says

Yep, the 24 hour a day isolation, lights on, stripped naked treatment by the military– prior to the upcoming trial of Private Bradely Manning, a “suspect” not yet tried (so legally he cannot yet be punished)– has caught the emotions of the U.S State Department spokesperson P.J. Crowley. Spokesperson Crowley has been the person at the State Department who has been very vocal about the alleged damage caused American interests by wikileaks. Yet, yesterday, when speaking at MIT he denounced Manning’s treatment in the brig. When asked by a BBC reporter if his comments were “on the record” he stated yes. Story here

On the other end of the spectrum is the pro torture US President. No, dummy, not George Bush. You know who I am talking about. Remember, the guy who won in 2008 and in his election night acceptance speech where we all wept as he spoke in front of the bright lights outdoors in Chicago and declared “We no longer torture people in this country.” That guy. He has not just completely broken his “Gitmo” promise, not only has he not refused to defend the hundreds of lawsuits regarding rendition, but yesterday he heard of Crowley’s statements and said

President Obama told reporters on Friday that he’s been assured by the Pentagon that its treatment of the private charged with giving information to WikiLeaks is “appropriate.”

Obama declined to “go into details” about the detention of Private Bradley Manning but said that he “actually asked the Pentagon whether or not the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards.”

“They assured me that they are,” Obama said.

Asked about Crowley’s comments at his press conference, Obama didn’t mention the spokesman. “I can’t go into details about some of their concerns, but some of this has to do with Private Manning’s safety as well,” Obama said.

David House, a spokesman with the Bradley Manning Advocacy Fund, responded in a statement: “Anyone who reads Manning’s attorney’s rebuttal can see that there is no justification for Bradley’s inhumane treatment. I agree with Mr. Crowley that it’s just stupid and unproductive.”

Obama’s tough stance against torture and in depth investigation into the situation of Manning is reported here.

Victory in Federal Court for 4th Amendment as NSA Spying Ruled Illegal

In an opinion found by clicking this link here, federal district court in Washington DC found the government’s collection of meta data on telephone calls to be violative of the Fourth Amendment. This vindicates Edward Snowden. This program, ruled illegal as in violation of the US Constitution, was denied to exist under oath by members of our government when testifying before Congress.

At some point, we will all realize as an entire group that the attack by the terrorists in 2001 did not ruin our country as much as our reaction to it did.

Federal Indictment Based on ATF “Sting” Operation Dismissed in Los Angeles Central District for ATF Misconduct

Central District Judge Manuel  Real dismissed all charges in a case involving ATF Officers setting up defendants to rip off non-existent “stash” houses.   The case is 13-CR-751 United States v. Flores et al. Read all about it by checking the pacer docket here:

There are a few of these cases in the Eastern District right now.

https://ecf.cacd.uscourts.gov/doc1/031118914253

Man Throws Away 3 Small Fish And Ends Up In The US Supreme Court

Recent cert petition granted.  Guy had 72 red grouper fish when Florida officers boarded his boat off shore. Alleged to be too small to keep.  Was told to bring the fish and boat to port.  He did.  Officers counted only 69 fish, and alleged that he had thrown 3 overboard.  Few years later, charged in federal court with a federal felony, basically Obstruction of Justice.  To be clear, a violation of the Oxley-Sarbanes Act at 18 USC 1519.   Here is a summary:

Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

Case will be heard next October.  Briefs and information can be found here:

Yates v. United States

More on the Reasoning of the Ninth Circuit’s Right-To-Carry-A-Gun Opinion

As I noted earlier, today’s Ninth Circuit decision in Peruta v. County of San Diego (9th Cir. Feb. 13, 2014), concludes that California’s broad limits on both open and concealed carry of loaded guns “impermissibly infringe[] on the Second Amendment right to bear arms in lawful self-defense.” I’ve now finished reading the opinions, and had a few general thoughts.

1. California law essentially leaves most law-abiding adults without the ability to carry guns in public for effective self-defense, period. People are barred from carrying guns either openly or concealed. It is this broad policy that the majority holds unconstitutional.

In D.C. v. Heller, the Supreme Court strongly suggested that (1) the right to “bear” arms means the right to carry them, but that (2) bans on concealed carry are constitutional:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Thus, if California law had banned concealed carry but allowed open carry (which some states have historically done), that wouldn’t have violated the Second Amendment. And if California law had banned open carry but allowed concealed carry (perhaps requiring a license that pretty much all law-abiding adults could get), that too might well have been constitutional, on the theory that it still left people free to carry guns, but just regulated the “manner” of carrying.

But, as the Ninth Circuit majority points out, a general prohibition on all carrying of guns in public is more than just a way of regulating the manner of carrying:

A flat-out ban on concealed carry in a jurisdiction permitting open carry may or may not infringe the Second Amendment right — the passage from Heller clearly bears on that issue, which we need not decide. But whether a state restriction on both concealed and open carry overreaches is a different matter. To that question,Heller itself furnishes no explicit answer. But the three authorities it cites for its statement on concealed-carry laws do.

Indeed, the Ninth Circuit majority argues, pretty much all the 19th-century cases that accepted the view that the Second Amendment secures an individual right to keep and bear arms in self-defense also took the view that the right includes a right to carry insome manner. (Those 19th-century cases that rejected any right to carry, the majority argues, took the view that the right is collective, or the view that it doesn’t include self-defense purposes — views that the Supreme Court rejected in Heller.)

I think the Ninth Circuit majority’s analysis is correct on this, and the dissent’s is mistaken. The dissent keeps stressing that the case should be about whether the California ban on concealed carry is constitutional, and that Heller says that the concealed carry ban is indeed constitutional. But the California ban on concealed carry is part of a general scheme that bans the great bulk of all carrying in public for self-defense (unless one has a permit that the police may choose not to grant). It is this general scheme that violates the Second Amendment, even if a ban on concealed carry that left people free to carry openly would not do so.

2. So the Second Amendment secures a right to carry — but may even a broad ban on such carrying still be constitutional on the grounds that it passes “intermediate scrutiny,” in the sense of being substantially related to an important government interest? Some courts have upheld such broad bans on this theory. But the Ninth Circuit says no, and I think correctly so:

[I]f self-defense outside the home is part of the core right to “bear arms” and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego’s policy. See Heller, 554 U.S. at 634 (“The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worthinsisting upon.”)….

A law effecting a “destruction of the right” rather than merely burdening it is, after all, an infringement under any light….

It is the rare law that “destroys” the right, requiring Heller-style per se invalidation, but the Court has made perfectly clear that a ban on handguns in the home is not the only act of its kind. We quote the relevant paragraph in full, telling case citations included:

Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. InNunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

3. The court also dismissed the argument that the California scheme is saved by the fact that people might get concealed carry licenses if they show “good cause” to the satisfaction of the police department, or by the fact that there are some other exceptions:

[T]he California scheme does not prevent every person from bearing arms outside the home in every circumstance. But the fact that a small group of people have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of
his constitutional rights. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”

That too strikes me as right. If there is no individual right to carry guns in self-defense, then a ban on such carrying is just fine. But if there is such a right, it is an individual right, and a ban on most people’s exercise of this right can’t be justified on the grounds that some people are allowed to exercise it.

4. Finally, note that nothing in the opinion means that narrower regulations of gun carrying are unconstitutional. “Shall-issue” schemes that require a license to carry, but let pretty much all law-abiding adults get such a license, would likely be upheld. The same is true for restrictions on carrying in particular places, such as schools or government buildings. But a broad ban on all gun carrying in public, the court held, violates the Second Amendment.