Author Archives: Mark Godsey

Friday’s Quick Clicks…

What’s Next for Innocence Work in the UK?

From thejusticegap.com:  By Hannah Quirk

The End of Innocence, and The Chance of a New Beginning

The sudden demise of the Innocence Network UK (INUK) has caused consternation amongst those working with students on miscarriage of justice cases  – but it also offers a chance for anew beginning in clinical legal education in this country. Following my work at the Criminal Cases Review Commission (CCRC) and an American innocence project, I argued in 2006, that criminal justice policy transfers between these two countries are not straightforward. Now seems a good opportunity to revisit some of those concerns.

Many of the problems with the work of INUK stem from the fact that it was just assumed that innocence projects were a good idea in this country. Innocence Projects in the USA are a commendable – if wholly inadequate – response to the appalling numbers who are wrongly convicted, with no hope of post-conviction legal assistance. These projects investigate and litigate cases that can also help campaign for criminal justice reforms. The situation in England, Wales and Northern Ireland is very different (Scotland has its own body).

In this country, a range of measures governing the collection and use of evidence has reduced the most egregious errors – the television series Life on Mars was founded on the audience recognising how policing had changed since the 1970s. Unlike in the USA, very few cases turn on DNA analysis which means that most appeals are on the basis of unsafety – we can never know with certainty whether the individuals were factually innocent or not. The nature of the caseload in this country is different; there far more are domestic sex abuse cases which bring unique investigatory challenges. Most significantly, we have a state funded body that investigates miscarriages of justice and refers cases back to the appeal court where appropriate.

Rather than continuing trying to shoehorn the work being done into the Innocence Network’s (trademarked) template, we have an opportunity to reflect on the experience gained over the last decade and consider the best way to proceed. Now is the time to think about what these projects are trying to achieve and what kind of assistance they can offer those claiming to be wrongly convicted. This needs to take into account the different types of cases in this country, the different level of legal education (undergraduate here rather than post-graduate in America) and how to work with the CCRC which remains the only mechanism for getting a conviction quashed. The most important consideration is, of course, how appellants are treated but there are also questions about students that require attention.

Assuming the university-led work is to continue, at what the CCRC chairman has said is a challenging time for his organisation, the following points are important:

  • Should ‘innocence’ be in the name? It is a compelling title but – as the projects have discovered – vanishingly few cases are of demonstrable innocence. The legal test that students need to apply is ‘unsafety’ – boring, bureaucratic but infinitely more protective of both suspects and the integrity of the criminal justice system. We should be teaching students – some of whom will become defence lawyers, prosecutors, police officers, journalists or politicians – why that test is so important. Students at the University of Northumbria who worked on Alex Allen’s successful referral and compensation claim, work from the Student Law Office for example.
  • What work should the students undertake? As Michael Naughton explained in his statement about INUK’s future, the realities of the undergraduate curriculum mean that it is difficult for students to dedicate sufficient time to a case. Any case that is not concluded in the academic year, has to wait to be reallocated, new students have to familiarise themselves with the case – and more time is lost for the applicant. This is unsatisfactory for students who do not see a case to completion, and dispiriting for applicants and their loved ones. In cases where there is a potential referral, this can mean a person spending years longer in prison than if they had gone directly to the CCRC. It might be more profitable for all concerned, if students focused on writing applications to the CCRC for applicants and monitoring the case progression, (as I understand students at the University of Leeds Innocence Project do). Research has indicated that CCRC applicants with legal assistance have a greater success rate). Those projects that want students to undertake investigations could focus on cases that have already been rejected by the CCRC so there is nothing to lose by any delay caused.
  • What should students not do? Emily Bolton, who founded the Innocence Project New Orleans(IPNO) and is now establishing the Centre for Criminal Appeals said in an interview the answers are not going to be in the office or on the phone but found by knocking on doors and revisiting crime scenes. If I’m missing a fact, I get my car keys and get out and find someone who can give me the answers.’ This encapsulates exactly why the US experience cannot be imported here – such actions could fatally compromise an appeal if the Court of Appeal considers it has been tainted. There are also risks to students engaging in such work – whether in contacting potential witnesses, sex offenders who enjoy rehearsing the details of their cases, or through the distressing nature of some of what they read. Kevin McMahon, founder of Merseyside Against Injustice, was convicted of perverting the course of justice for seeking a retraction statement from a prosecution witness before an appeal hearing.

In 2005, I left the CCRC and spent six months working at IPNO. I planned to conduct a piece of research comparing how miscarriages of justice are dealt with in the UK and the USA. Within a week, I realised that my project would have to change – the two systems were worlds apart.

I had left a well-funded, stable institution with statutory investigative powers, for an office that was scrabbling for funding, run by a handful of overworked staff supported by interns, was literally being eaten by termites, faced huge resistance from the police and prosecutors and was shortly to have to cope with Hurricane Katrina.

I was filled with admiration for the work of innocence projects but returned home with a renewed appreciation of the – obviously imperfect – system in this country. I found it baffling that the American model was being looked to for inspiration when what we had here was so much better.

None of this is intended as a criticism of those who have worked very hard to establish these projects over the last decade, but good intentions can still have unfortunate consequences. These cases are amongst the most difficult in the criminal justice system – despite all the problems with the National Health Service, most of us would be uncomfortable at the idea of medical students attempting brain surgery. Whilst the Americans may love Sherlock, importing the Scooby Doo model here (‘… and I would have gotten away with it too, if it hadn’t been for you meddling kids!’) is not necessarily the answer.

To misquote George Bernard Shaw, when it comes to wrongful convictions, America and England are separated by much more than a common language. This country has led the world in its response to wrongful convictions. Maybe the furore over INUK marks the time to set out on charting our own distinctive course in clinical legal education.

 

Tuesday’s Quick Clicks…

China’s Top Prosecutor Vows to Fight to Prevent Wrongful Convictions…

From the ShanghaiDaily.com:

BEIJING, Sept. 4 (Xinhua) — China’s top prosecutor has pledged efforts to prevent miscarriage of justice following the high-profile acquittal of a man previously convicted of murder.

Procurator-General Cao Jianming called on judicial workers to reflect on problems that persist in the judicial system, despite attention and measures to address them, according to an article in the Thursday edition of the People’s Daily, the flagship newspaper of the Communist Party of China.

Last month, a court in east China’s Fujian Province acquitted Nian Bin, a man imprisoned for murder, citing insufficient evidence.

Nian had been convicted and sentenced to death in 2008 by a court that found him guilty of poisoning four people, causing two deaths.

His acquittal in the case raised public outcry for stricter implementation of rules to protect defendants in the face of doubt or insufficient evidence.

Some judicial workers have misconceptions about law enforcement, which have resulted in the presumption of guilt in their work, Cao said at a recent commencement ceremony of the National Prosecutors College.

In some cases, defendants were not given the benefit of the doubt, and some prosecutors have relied excessively on confessions and testimony rather than factual evidence, he said.

Some procuratorial workers haven’t paid proper attention to protecting defendants’ rights and due process when enforcing the law, according to the top prosecutor.

Cao called on the country’s procuratorial workers to adhere to professional ethics and the rule of law and prudently practice their duties in supervising criminal procedures.

Cao stressed that unlawfully obtained evidence should be ruled out in accordance with law.

He told law enforcers to resist the temptation of money and interference due to personal relationships.

New Scholarship Spotlight: The Brady Colloquy

by Jason Kreag

Visiting Assistant Professor, University of Arizona James E. Rogers College of Law

Ensuring that prosecutors comply with their ethical and due process disclosure requirements has been a distinctly vexing problem for the criminal justice system, particularly in light of the frequency of wrongful convictions caused by prosecutorial misconduct. The problem stems from the shortcomings of the Brady doctrine and institutional forces that make it difficult to hold prosecutors accountable when they commit misconduct. In response to these challenges, commentators have offered numerous reforms to increase compliance with prosecutors’ disclosure requirements; however, many of these proposals are complex, would impose considerable burdens on the system, and/or would require new legislation or regulations. Instead, this Essay calls for a short Brady colloquy during which a judge would question the prosecutor on the record about her disclosure obligations. Such a colloquy would provide judges an additional tool to enforce Brady, nudge prosecutors to comply with their disclosure obligations, and make it easier to punish prosecutors who commit misconduct. Most importantly, judges could implement a Brady colloquy today without the need for additional legislation or ethical rules.

Continue reading….

Tuesday’s Quick Clicks…

New Scholarship Spotlight: Shaken Baby Syndrome, Wrongful Convictions, and the Dangers of Aversion to Changing Science in Criminal Law

Cassandra Ann Jenecke has posted the above-titled article on SSRN.  Download here.  The abstract states:

Shaken Baby Syndrome prosecutions are vulnerable to wrongful convictions because of the erosion of the science behind the diagnosis of SBS and because of the inflammatory nature of the charges. This paper evaluates the science behind the medical and legal diagnosis of SBS. It also explores international reforms related to the same developments in science and finds the American response lacking. The author concludes that without recognition of and reform related to the evolution of our scientific understanding of SBS, actors within the American criminal justice system will continue to contribute to the almost certain wrongful conviction of innocent caregivers and parents.