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

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?