Sunday, July 13, 2014

In Defense of Santa Muerte

     The brightly adorned skeleton, often holding a glass globe, scales of justice or a scythe, is many things to many people. She is a comfort to outcasts; a miracle worker who provides safe travels for those on a journey; and a figure who has become so popular in Mexico and the United States as to be worthy of denouncement by the traditional Catholic church. 

     What Santa Muerte is not, however,  is a "tool of the drug trade." The Tenth Circuit recently overturned two convictions after jurors heard testimony from a law enforcement anti-cult "expert" about the link between drug traffickers and the folk saint, Santa Muerte, or Our Lady of the Holy Death. The witness, U.S. Marshal Robert Almonte, has conducted law enforcement trainings, written about the "narco saint," and testified as an expert in previous criminal trials.
     Here, the defendants were stopped for a traffic violation. As they were being questioned, the officer noticed that the passenger was holding a prayer card with an image of Santa Muerte. At their drug trafficking and firearms trial, Agent Almonte was allowed to testify as an expert that the presence of a Santa Muerte prayer card, was "a very good indicator of possible criminal activity."  Almonte also told the jury that "very often criminal drug traffickers and other criminals pray to her for protection from law enforcement or anybody else they consider to be their enemy."  He further opined that, based on his experience, a person offering a similar prayer to St. Jude, patron saint of desperate causes, would not be a sign of suspicious behavior because "St. Jude is a legitimate Catholic saint." That testimony, the Court wrote, was close to "psychobabble and substantially influenced the outcome" of the trial.

    US v. Medina-Copete, written by Judge Lucero, held that the New Mexico trial court erred in failing to consider whether a prayer card  could qualify as a "tool of the drug trade;" erred in qualifying Almonte as an expert based on mere correlations derived through his "own self-study of the 'iconography of the Mexican drug underworld,'" rather than on "facts or data" as required by Rule 702(b)and erred in using the fact that Almonte had been qualified before as an expert, rather than whether his background qualified him to be an expert. 

    This decision should be useful, and not just in cases involving evidence of Santa Muerte shrines, prayer cards and figurines. Police officers who testify as experts are subject to notice requirements, FRE 702, and may be challenged as experts under Daubert.  Expertise must be founded on something more than personal observations and conclusions. FRE 702 criteria and Daubert's gatekeeping function should expose law enforcement speculation disguised as expertise.

-- from guest blogger Laura Shaneyfelt. 

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