Category Archives: Commissions/Innocence Commissions/Governmental Case Review Agencies

New Zealand starts new ‘Innocence’ Panel

untitledSince the high profile exoneration of Teina Pora (see here…) and lots of calls for reforms in New Zealand, including a body to look at miscarriages of justice, the newly created New Zealand Public Interest Project (NZPIP) has now started work. A charitable organisation, it plans to look into cases as well as wider concerns about the operation of the NZ criminal justice system. The body already has a queue of high profile cases in which a prisoner is claiming innocence. While good news…. it is not a government backed (or funded) body… which should have been the response to growing concerns about the justice system in New Zealand.  One hopes that if they can bring attention, and overturn, further miscarriages of justice, the government will take the issue seriously and set up a funded body. Read more here….

Many innocent people languishing in NZ jails says legal group fighting miscarriages of justice

Panel to investigate miscarriages of justice

Miscarriage of justice investigation panel launched

Vietnam: Government debates problem of wrongful convictions

In yet another encouraging sign the the ‘problem’ of miscarriages of justice is starting to be taken more seriously globally – the National Assembly of Vietnam has this week been debating the issue of wrongful convictions. In a courageous move, auntitled standing committee looking at wrongful convictions and compensation, admitted that while most investigations and prosecutions were carried out in adherence with rules and upheld human rights, there were some ‘weaknesses and shortcomings’. The report states that between October 1, 2011 to September 30, 2014, there were 71 wrongful convictions – a rate of 0.02 per cent. Although a ‘small’ number, they admitted: “Some serious cases created extreme anxiety among the public, eroding many people’s confidence in our justice system and damaging the prestige of our law enforcement agencies.”. However, with 80% of trials in Vietnam taking place with NO defence counsel, and the country still reportedly ‘trying hard’ to eradicate torture and coerced confessions, it may be questionable how the figure of 71 was reached… and it’s accuracy. Despite this scepticism, it is still heartening that such reports are being published. Read more here…

Miscarriages of justice in Vietnam are serious: legislators

NA debates wrongful convictions

 

“Anti-Snitch” Bill in North Carolina ‘Dies’ in the Legislature

Making deals with snitches — just one of the more loathsome practices of prosecutors, and it happens all the time. Here’s how it works. A prison inmate (snitch) who has contact in prison with the defendant in a case comes forward, and claims that the defendant confessed to him in prison, or that the defendant bragged about the crime, or said things that implicated himself in the crime. In “exchange” for his testimony against the defendant the snitch is granted favorable treatment by the prosecutor – reduced sentence, reduced charges, early release, etc. Snitches can also be people who are not in prison, and get paid money for their testimony, or have pending charges dropped. Snitch testimony is often totally fabricated, and the snitch is lying just to get the deal from the prosecutor or to get the money. Snitches will read newspaper reports of crimes to learn just enough detail about a crime to give some credibility to their fake claims about what the defendant said to them. And when prosecutors put snitches on the witness stand, you can’t tell me they don’t know the testimony is bogus. However, it’s not uncommon for snitch testimony to be the deciding factor in a conviction.

North Carolina has been among the leaders in addressing the problem of wrongful convictions, including establishing the first state innocence commission, the North Carolina Innocence Inquiry Commission, in 2002. And recently in North Carolina, the issue of perjurious snitch testimony has bubbled to the surface. A bill under consideration in the legislature would bar a conviction based solely upon incentivized (snitch) testimony. However, that bill has now essentially died in the legislature after intense lobbying from the North Carolina Conference of District Attorneys.

This from the publication INDY Week: “Supporters called it one of the strongest bills in the country that would protect criminal defendants from lying jailhouse snitches. But now, the I. Beverly Lake, Jr., Fair Trial Act is on life support, blocked by N.C. House leadership after pressure from the state’s Conference of District Attorneys.”

See the INDY Week story here.

Given North Carolina’s heretofore forward thinking on wrongful convictions, I am dismayed by this; but, it’s just yet another obstacle to overcome – so upward and onward. The fact that this bill has even been under consideration is a source of encouragement, because it means that some legislators actually understand some of the problems.

 

Friday’s Quick Clicks…

Tuesday’s Quick Clicks…

Weekend Quick Clicks…

Will They EVER Fix Forensics ?

We (I) haven’t posted here about forensics for some time, and the pot is long overdue for a stir. This post was triggered by a recent piece in the NY Times – Fix the Flaws in Forensic Science – see that NY Times story here. The Times story was in turn triggered by the recent “announcement”  (admission) by the FBI that FBI agents had been giving scientifically unsupportable testimony regarding microscopic hair comparison in thousands of cases for decades.

Because of a belief and fear that much of forensics was flawed, the NAS Report (National Academy of Sciences), Forensic Science in the United States, A Path Forward, was commissioned by Congress in Fall of 2005. The report was published in 2009. The report issued a scathing condemnation of the current state of forensic “science.” It was, of course met, with a firestorm of resistance from the forensic and prosecutorial communities. Regardless, the US Department of Justice and the National Institute of Standards and Technology announced the joint creation of a National Commission of Forensic Science (NCFS) in 2013 – see previous WCB posts here, and here.

The NCFS did not hold its first meeting until February, 2014. The Commission released its first nine drafts of policy statements for public comment in October, 2014. In January, 2015, it officially adopted three of those statements. The adopted policies are highlighted in the list below:

ncfs recs

While this has been going on, the sole federal judge on the commission, Jed Rakoff, resigned just last January in protest over the Justice Department’s position on an issue that would continue to favor prosecutors at the expense of full pretrial evidence exchange. There has since been an accommodation reached, but I suspect this is indicative of the Justice Department’s opposition to truly changing anything. This also causes me to wonder greatly about the objectivity of all the commission members.

Keep in mind also, that the commission is only empowered to make policy recommendations. It has no powers of oversight or enforcement, and no way to administer the adoption of its recommendations. My reading of the “tea leaves” here is that the advocates for the Justice Department and the existing forensic community have successfully kept the commission mired in politics and committees. So … there you have it. Six years after the publication of the NAS Report, a federal commission with no powers has adopted three policy recommendations.

In the meantime, the traditional forensic science community has been motoring along as if the NAS Report never happened. At the most recent American Academy of Forensic Sciences meeting, there was an active session on forensic odontology (bite mark analysis); a discipline for which the NAS Report states there is absolutely no scientific basis.

Do you wonder why I ask, “Will they EVER fix forensics?”

Thursday’s Quick Clicks…

Wednesday’s Quick Clicks…

  • A prosecutor in Virgnia says the right things and appears to “get it”
  • Great editorial on eyewitness ID reform in Missouri by Rebecca Brown
  • In Ohio, Ricky Jackson and five other death row exonerees speak at State House against capital punishment

Thursday’s Quick Clicks…

UK’s Criminal Cases Review Commission (CCRC) subject of critical report.

The Criminal Cases Review Commission of England and Wales (Scotland has their own Commission) has been the subject of a recent inquiry by the UK Parliament’s Select Justice Committee (see here). The inquiry received 47 written submissions and heard oral evidence from a select group of experts, lawyers and campaigners on miscarriages of justice. The Committee today released it’s highly critical report that can be read here….  It made a series of recommendations including increased funding from government, but also that the CCRC ‘relax’ it’s narrow interpretation of the ‘real possibility’ test when referring cases back to the Court of Appeal. There have been media reports highlighting the critical tone of the report:

Miscarriage of justice review body is dismissed as the Court of Appeal’s ‘lap dog’ in hard-hitting report

The report concluded:

19. We conclude that the CCRC is performing its functions reasonably well, and we have identified areas for improvement, but we were struck by the disparity between what critics believe it to be doing and what it claims that it is doing. At times there was complete disagreement, even on objective and factual matters. This indicates that at the very least the CCRC has a problem with public perception, including with the awareness of applicants as to what it can do for them and of all stakeholders, including applicants, their representatives, and others, as to how it operates. The CCRC will never convince its most vociferous detractors, but it could be doing more to ensure that its work and processes are well understood. (Paragraph 54)

20. The level of successful referrals from the CCRC shows that it remains as necessary a body now as when it was set up. We received very little evidence advocating its abolition, and even its strongest critics have said that they simply want it to improve. The existence of the CCRC is not enough in and of itself; it must be given the resources and powers it requires to perform its job effectively. The fundamental constitutional principle on which our criminal justice system rests and which the Commission exists to uphold is that the guilty are convicted and the innocent go free. (Paragraph 55)

Tuesday’s Quick Clicks…

Friday’s Quick Clicks…

Conviction Integrity Units – A Skeptic’s Perspective

Anyone who has followed me at all on this blog must know that, as a group, prosecutors are not my favorite people. But it’s almost, kind-of not their fault. It’s just that the position has been institutionalized with so much power, and with no accountability, and with no consequences for misdeeds; any mortal human would succumb to the seductive temptations of such power. As I’ve noted several times before on this blog, Lord Acton’s words fit exactly – “Power tends to corrupt, and absolute power corrupts absolutely.” I am sure there must be prosecutors out there who are dedicated to the mission of being a “minister of justice,” and who will work tirelessly to see true justice done, no matter the consequences or impact to their personal career.  I just haven’t come across any yet (with one, single, notable, extraordinary exception). With that being said, there has been much favorable press lately about the establishment – by prosecutors – of “conviction integrity units.” CIU’s are resource (people and funds) within a prosecutor’s office who are tasked with seeking out and rectifying wrongful convictions. The CIU’s of which I am aware at this point in time are:

CIU's

We can do nothing but applaud these efforts. After all, a wrongful conviction corrected is a wrongful conviction corrected. If nothing else, the CIU’s are an admission by prosecutors that the justice system does fail. But there are aspects of these units that trouble me.  They are all totally contained within the prosecutor’s office. They are not subject to any kind of independent, objective oversight. The prosecutors have total control over which cases they choose to review and which they don’t. Case in point: Lake County, IL State’s Attorney Michael Nerheim’s decision not to have his conviction integrity unit review the case of Melissa Calusinski, that was recently featured on CBS “48 Hours.” If the prosecutor decides whom to indict and the prosecutor decides whose case the CIU will review, what’s the difference? The prosecutor decides in either case. There’s still no independent review, no accountability, and no consequences. Wouldn’t it be much, much better just to get justice right in the first place?

My strong suspicion is that, because of increasing publicity about wrongful convictions, prosecutors are establishing these things to politically bolster their public image. Call me cynical – and we should welcome every step toward true justice – but I tend to see a fox guarding the hen house and a wolf in sheep’s clothing. Over the past decade, people and organizations within the “innocence movement” have made noticeable and laudable progress.  As of this writing, the National Registry of Exonerations has logged 1,555 exonerations of people who were wrongfully convicted – and anyone who does this work can tell you that this is just a drop in the bucket. The media have done a pretty decent job of making these exonerations known to the public. After all, it makes for a good “story.” And one of the interesting facts that often comes out in many of these stories is that 46% of those 1,555 wrongful convictions had “official misconduct” as a contributing factor. Official misconduct includes both police misconduct and prosecutorial misconduct. The data in the registry does not distinguish between the two, but clearly, prosecutorial misconduct is a significant contributing factor to wrongful convictions. The Center for Prosecutor Integrity has begun building a data base of such misconduct – the Registry of Prosecutorial Misconduct.  I look forward to the day when this registry will provide the kind of hard data that can be used to drive justice system and legislative reform.

This negative publicity over the last several years has put political pressure on prosecutors; particularly in jurisdictions that have a demonstrated history of wrongful convictions. Prosecutors are political animals. They hold elected political office, and they will do just about anything to maintain their credibility with the electorate in order to be re-elected, or to be elected to higher office. Prosecutors are pointing to these things, and saying, “See. We’re being proactive about wrongful conviction.” My expectation is that they are cherry picking the easy, obvious cases, and reaping the good publicity. It remains to be seen how many wrongful convictions they will overturn that involved egregious prosecutorial misconduct, particularly if the subject prosecutor is still with the prosecutor’s office.

CIU’s have yet to stand the test of time. Can they last? Can they actually be apolitically dedicated to true justice, no matter the circumstances?  Perhaps time will tell, but my current view is that CIU’s are the prosecutors’ public relations gimmick du jour, and that they are transparently political.

Just watch. When the CIU’s eventually start being dismantled, I predict we’ll hear one or both of the following justifications:

1) We’ve fixed everything there was to fix, and we promise to behave ourselves in the future, so the CIU is no longer needed.

2) Budget constraints and the requirements of ongoing prosecutions force us to apply the resource devoted to the CIU to more urgent business.

It would be nice if the CIU’s keep motoring along, overturning wrongful convictions, even if they’re very politically and self-protectively selective in which cases they review. How could anyone object to that?  Again, a wrongful conviction overturned is a wrongful conviction overturned. But to achieve true objectivity, fairness, and impartiality, this function must be separated from the prosecutor’s office. To think anything else is farcical – they have a vested interest in their own convictions. I hold up as a model for how this should be done – the North Carolina Innocence Inquiry Commission. Of course, the problem here is one of throughput. A single commission in a state with many, many counties just cannot possibly deal with all the potentially wrongful convictions that the justice system produces. Maybe there’s a way to solve this throughput problem, but I don’t think anyone knows what it is right now, or should I say “yet.”

I am not advocating that the CIU’s go away, but there must be a better, more objective way to do this. I fear that many cases that deserve review will not be reviewed, because the prosecutor decides it would not be in his/her best interest. And let’s be careful about how much “credit” we give the prosecutors, because these things are clearly politically self serving. In the meantime … prosecutors will continue doing what they do – which is whatever they want, with no fear of sanction.

Let me end, however, with the note that there is a very interesting experiment unfolding in New Orleans. The New Orleans Parish District Attorney and the Innocence Project-New Orleans have agreed to jointly establish a “conviction integrity unit,” although I’m not sure what they’re going to call it yet.  Details of how this will operate are yet to come clear, but it bears very careful watching.

Why a Wrongful Conviction is Like a Plane Crash – or Should Be

The civil aviation system and the justice system are two ubiquitous systems on which we absolutely depend daily; even with our lives.  When either of these systems fails, the consequences are invariably tragic, impacting families and lives.

When a plane crash occurs, the NTSB (National Traffic Safety Board) and the FAA (Federal Aviation Administration), along with local police, fire, and medical examiners, literally swoop in, and investigate the crash down to the minutest detail.  Sometimes, even the FBI gets involved. See the article “Inside the Aircraft Accident Investigation Process” here. As a result of the investigation, there can be changes made to the air traffic control system, and orders can go out to aircraft manufacturers and airlines requiring design changes or inspections of aircraft, and whole fleets of airplanes can be grounded until changes or fixes are implemented.  New training requirements can be established. All this is the absolutely proper and necessary thing to do.  When a system that we all depend on fails, we need to understand what happened, understand why it failed, and make changes so it never happens again.

If this is true for the air travel system, and I cannot believe anyone would disagree with that, why should the same not be true for the justice system? It’s a system on which we all depend.  When it fails, lives are shattered, children are taken from parents, families are separated, innocent people are put in prison, and innocent people are even executed.

When a failure of the justice system occurs, what happens? Based upon my years of working in this, absolutely nothing. A wrongful conviction may be overturned, but nothing changes in the system as a result of it, and indeed, there is not even an investigation by an authoritative body to determine what went wrong, and how to fix it. My experience tells me that when the justice system fails, the response from the system is, “Oh well, too bad. Now on with business as usual.” And the same failures keep happening over and over and over.

Why can’t there be an “NTSB” for the justice system? — a body with the authority and responsibility to examine justice system failures, and to take the necessary actions to ensure they don’t happen again. This could absolutely be done on the state level. I find the logic of this inescapable. You cannot possibly build a credible, supportable argument against it. But knowing what I know about politics, legislatures, and human nature, I’m not optimistic. But how can you possibly argue that this wouldn’t be the right thing to do?

Growing Number of Inmates in US Prisons Found Innocent

Here’s a neat YouTube video featuring both the National Registry of Exonerations and the Center for Prosecutor Integrity.

See the YouTube video here.

Editorial comment:  The video praises the recent creation of “conviction integrity units” within prosecutors’ offices.  These have received much good press in general. We can only applaud the effort and the results so far. After all, the correction of a wrongful conviction is the correction of a wrongful conviction. However, I remain skeptical. My view is that the CIU’s are cherry picking the easy, obvious cases, and what will happen when they start to run out of these? I also believe that the CIU’s are being established driven by political expediency, not some fundamental desire to serve true justice.  When the CIU’s start to be dismantled, I suspect there will be very little, if any, publicity about that.

 

North Carolina Innocence Commission’s success has yet to inspire other states to follow suit

With eight exoncerations to its credit, the North Carolina Innocence Inquiry Commission is living up to its goals when it was established in 2006. With official powers that others who investigate possible wrongful conictions don’t have, The Atlantic reports here, the commission has been able to crack cases that others might not have been be able to. That should make it a national model for how states could correct wrongful convictions, but it hasn’t been so far. Money is one reason. A lack of commitment may be another.

Connecticut Makes First Ever Compensation Payment to an Exoneree

Exoneree compensation was approved by the CT legislature in 2008, but the state has just made its first ever compensation payment to Kenneth Ireland who spent 21 years in prison after being wrongfully convicted of rape and murder.

Ireland was awarded $6 million on Thursday by the state’s Office of the Claims Commissioner.

See the aol.com story here.

 

National Registry of Exonerations: 2014 was Record-breaking with 125 Exonerations in U.S.

For the first time, more than 100 exonerations were recorded in the United States in one year. According to The National Registry of Exonerations Report for 2014, 125 exonerations of innocent criminal defendants mark an increase of 34 over the prior record of 91 in 2012 and 91 again in 2013. The report notes the work of Conviction Integrity Units in the increase.

“The big story for the year is that more prosecutors are working hard to identify and investigate claims of innocence. And many more innocent defendants were exonerated after pleading guilty to crimes they did not commit,” said Michigan Law Professor Samuel Gross, editor of the National Registry of Exonerations and the author of the report.

Both the number of Conviction Integrity Units and the exonerations they produced increased in 2014. There were 49 CIU exonerations in 2014, including Continue reading

A Word About Conviction Integrity Units

There has been a reasonable amount of fanfare recently about the establishment of “conviction integrity units.”  See Mark Godsey’s December 11 WCB post, “Center for Prosecutor Integrity Surveys Rise of Conviction Integrity Units”, here.

We can do nothing but applaud these efforts, but there is one aspect of these units that troubles me.  They are all totally contained within the prosecutor’s office.  Does anyone else think this presents an inherent conflict of interest?  My suspicion is that, because of increasing publicity about wrongful convictions, prosecutors are establishing these things to politically bolster their public image. Call me cynical – and we should welcome every step toward true justice – but I tend to see a fox guarding the hen house and a wolf in sheep’s clothing.  Is there any requirement that all proceedings of these units be public record?

My belief is that the model for how these units should be set up is the North Carolina Innocence Inquiry Commission, which has been in operation since 2007.  What I think is notable here is the composition of the commission: the members include a Superior Court Judge, a Prosecuting Attorney, a Defense Attorney, a Victim Advocate, a Member of the Public, a Sheriff, and two Discretionary members.  This shows a reasoned effort to endow the commission with objectivity.

In a very recent development, the Innocence Project of New Orleans has announced that it is partnering with the Orleans district attorney’s office to establish a joint “conviction review project.” See the IPNO announcement here. This is a big deal, and will bear watching.