Category Archives: Defense lawyering (good and bad)

These Are the Wrongful Conviction Cases That Haunt Me

I’ve been doing “innocence work” for seven years now.  So …. just what is it that I do? I am Science & Technology Advisor to the Ohio Innocence Project at the University of Cincinnati College of Law and to the Duke Law Wrongful Convictions Clinic at Duke University. This means I advise on cases that include factors involving science and/or technology – usually forensics. I will also advise any innocence organization or agent that requests my input, and I do this pro bono. I do some other stuff too, like write for this blog, but those are the roles in which I get involved in case work.

During this seven year period, I’ve had personal involvement – meaning I’ve actually done work – in 63 cases in eight states and two foreign countries; and have had exposure to the details of probably 100 more cases on top of that. I’ve been privileged to be a small piece of the puzzle in five exonerations; and, in four cases, my work has contributed to confirming that the defendant was actually guilty. We consider confirming guilt to be a good outcome, because it means that justice has been properly served. We’re not trying to get everybody out of prison – only the people who are actually innocent.

We relish talking about the successes, the exonerations, but nobody ever hears about the failures. I count a failed case as one in which, based upon careful and intensive study of all the facts, testimony and evidence, we (I) are absolutely confident that the defendant is actually innocent; but our efforts to exonerate have not succeeded, and there’s really nothing more we can do. Sadly, the failures occur much, much more frequently than the successes. There are no good data for this, but in my experience, an exoneration takes years of time (average about 7), thousands of hours of total effort by a great many people, and, in some cases, thousands of dollars. And the failures can take just as much as the successes, if not more.

Most of the cases I’ve worked remain “open,” at least technically, but there are some for which we have seemingly come to the end of the legal road, and there’s little, if anything, that can still be done. There are five of these cases, in particular, that keep me awake at night, because I get so outraged and frustrated by the injustice. I thought I would share them with you, so you might get some idea of what the people doing innocence work have to deal with on a daily basis. Since these cases are unresolved, I will not reveal any names, dates, or places, and will provide only sketchy details of the incidents involved, but you’ll get the idea.

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The Innocent Citizen’s Justice System Survival Guide

“Ours is a world in which justice is accidental, and innocence no protection.”     Euripedes, 400 B.C.

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I come from a legal family, so even though I did not go into law, I’ve had a closeup view of the justice system my entire life, which is, I think, one of the reasons I decided to devote my post-corporate life to innocence work. I saw too many things happening that were not congruent with my view of what a fair and just system should, and must, be. For the past seven years, I’ve been deeply involved in innocence work, and have become knowledgeable about the details of many, many cases (100’s) of wrongful conviction and wrongful imprisonment. Consequently, I’ve seen many ways in which actually innocent people become tragic victims of what we call “justice.” There are just so many ways the justice system can get it wrong. This has caused me to think about what it is that an innocent person can (and should) do when accusatorially confronted by this thing we call the justice system. [You might want to also read my previous post Why I Think the US Justice System is Broken, and Why It’s Not Getting Fixed.]

If you think being wrongfully charged, indicted, convicted, and imprisoned can’t happen to you, think again. It can happen to anybody. Just ask Debra Milke. The ways this can happen are countless, and despite the system’s best efforts, there are just too many ways the system can possibly get it wrong. I could give you lots of examples, but we won’t try to detail them here – just take a look at the National Registry of Exonerations, and keep in mind these are only the ones that have been so far successfully overturned within the system – there are magnitudes more. This article will try to give you some “suggestions” for what you might do if you find you’re being wrongfully suspected or charged with a crime. For those of you who have had no close interaction with the justice system, you might well think that I’m being radical and that I must come from somewhere in outer space … and you can think that right up until you get scooped into the meat grinder. Let me me just say, “Forewarned is forearmed.”

This article will be in six sections:

I.  Have a Lawyer You Can Call

II. Don’t Talk to the Police

III. The Plea Bargain

IV. Be Ready for Trial

V. Shaken Baby/Child Abuse (Abusive Head Trauma)  [This requires special attention and treatment.]

VI. If You Are Wrongfully Convicted

DISCLAIMER: I am not an attorney, and so cannot give you legal advice. These suggestions are only my personal opinion, and are solely the result of my exposure to the justice system and wrongful convictions over a period of years. They come with no guarantee. Every situation is unique, and you must always exercise your own judgment given the circumstances. They are just intended to get you thinking about how you would handle the situation of being wrongfully accused, and to give you some information about how the system works. I am certain that they cannot cover every possible situation, but hopefully, they will provide an overall, general guide for how you might deal with this. 

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Interview With Debra Milke’s Attorney

Here is a 25 minute interview with Debra Milke’s attorney.

It is fascinating and riveting.

And keep in mind, while you watch this, that our justice system did this.

See our previous post on the Milke case here.

And thank you to Camille Tilley for posting this in the comments. I felt it deserved ‘headline’ status.

 

Tuesday’s Quick Clicks…

Thursday’s Quick Clicks…

Friday’s Quick Clicks…

Update on the Hannah Overton Case

Five days ago, we happily posted here that the Texas Court of Criminal Appeals had overturned Hannah Overton’s conviction for murdering her 4-year-old stepson by salt poisoning.  The basis for the ruling was ineffective assistance of counsel, and we bemoaned the fact that the court let the prosecutor off the hook for egregious Brady violations.

Well … the happy ending is still a long way off.  The day after our posting, on October 18, 2014, Nueces County DA Mark Skurka announced that his office will retry Hannah Overton.

Given the evidence that the prosecutor had early on, and did not disclose to the defense, Overton never should have been charged in the first place. This was a “crime” that never happened.

Read the full story by Pamela Colloff for the Texas Monthly here.

If you can read Colloff’s article through, and not be bristling with anger, then you just don’t understand, or you need to read it again, or you’re just on the wrong blog.

Texas Appeals Court Grants New Trial … but Lets Prosecutor “Off the Hook”

The Texas Court of Criminal Appeals has granted Hannah Overton a new trial based upon her claim of  “ineffective assistance of counsel” (IAC).  She has served seven years of a life sentence for capital murder in the death of her 4-year-old stepson who died of a sodium overdose (salt poisoning).  She truly did have ineffective assistance of counsel, because her attorney did not present the videotaped deposition of a salt poisoning expert saying that the overdose was likely unintentional, and there was nothing she could have done.

But here’s the part of the story that really gets me.  Overton had also filed a claim that the prosecution had withheld exculpatory evidence (Brady violation), and the court was presented with both the IAC claim and the Brady claim.  In it’s ruling, the court declined to rule on the Brady claim, saying it was unnecessary since they had granted a new trial based upon the IAC claim.  They let the prosecutor off the hook.

Story from KRIS TV (Corpus Christi, TX) here.

For a current update, see the KRIS site here.

Exoneration in California Yesterday

MellenYesterday, Susan Mellen was released from prison after doing 17 years for a murder she did not commit.  She was serving a term of life without the possibility of parole.

Thanks in large part to the work of the organization Innocence Matters, a year-long investigation revealed that she was convicted solely on the basis of testimony from a woman who was proven to be a pathological liar, and that the defense at her trial had not researched that, and it was not presented in her defense.

The judge took only two minutes to vacate her conviction and dismiss her case. He was quoted as saying, “Ms. Mellen is not only not guilty. I believe, based on what I’ve read, that Ms. Mellen is innocent.”  “The justice system failed.”  The prosecution cooperated.

See the DAILY BREEZE story here.

Adrian Thomas “Not Guilty” in Second Trial

Adrian Thomas was originally convicted of causing the death of his 4-month old son in 2008.  This was largely a result of his confession under interrogation by the police in Troy, NY.

As previously posted on this blog, Thomas was subjected to a 9 hour highly coercive interrogation by the Troy police:  Blatantly Coerced Confession Results in Conviction Reversal.

Thomas’s confession was even the subject of the documentary film Scenes of a Crime.

In a second trial, just concluded June 11, 2014, Adrian Thomas was found not guilty.

See the Times Union story here.

 

Interesting SCOTUS Forensics Case….

Today, in Hinton v. Alabama, the U.S. Supreme Court found the trial attorney’s failure to request funding for a sufficient expert to challenge the State’s ballistics experts constituted ineffective assistance of counsel.  Opinion here.

Anthony Graves, Exonerated Death Row Inmate, to File Grievance Against Former Texas Prosecutor Charles Sebesta

AGraves

Yet another case of egregious prosecutorial misconduct.

Anthony Graves was wrongfully convicted and sentenced to death for a gruesome multiple homicide that occurred in Somerville, TX in August of 1992.  He was ultimately exonerated and released from prison in 2010.

The prosecutor in the case, Charles Sebesta, under intense public pressure for a conviction of Graves with a death sentence, ignored all evidence pointing to his innocence,  pressed ahead, and, as the special prosecutor appointed to handle Graves’ retrial said, “Sebesta manufactured evidence, misled jurors and elicited false testimony.”  The special prosecutor laid the blame for Graves’ wrongful conviction squarely at the feet of Sebesta.

Anthony Graves and the Houston law firm of Bob Bennett & Associates will file a grievance with the Texas Bar’s Office of the Chief Disciplinary Counsel seeking sanctions against Sebesta for his central role in Graves’ wrongful conviction and imprisonment.

Read the case statement of facts here – Statement-of-Facts.

You can see the full press packet here.

And read the Texas Monthly story here.

Editorial PS:  I think it’s tragic that Mr. Graves has to pursue redress through the Bar Association.  He should have remedy available through the courts.

Jerome Morgan Wins New Trial in New Orleans

With the help of the New Orleans Innocence Project, Jerome Morgan, who has spent 19 years in prison for a murder termed the “sweet 16 birthday shooting,”
has been granted a new trial.

The prosecution withheld exculpatory evidence in the case, and in Judge Darryl Derbigny’s order he states, “the evidence presented before this court is wrought with deception, manipulation, and coercion by the New Orleans Police Department,” and that “such newly discovered evidence undermines the confidence of the verdict and is fit for a new jury’s judgment.”

Additionally, two prosecution witnesses have recanted, and it was also determined that Jerome had ineffective assistance of counsel.

Read the New Orleans Times-Picayune story here.

Prosecutorial Misconduct Causes Reversal in California…

From the Northern California Innocence Project:

The Northern California Innocence Project (NCIP), acting as amicus, assisted veteran appellate and postconviction attorney Marc Zilversmit in reversing the conviction of Jamal Trulove, wrongfully convicted of murder after a single eyewitness implicated him in a killing San Francisco.  Zilversmit is a long-time supporter of NCIP and it was a pleasure to be able to assist him in attaining justice for Mr. Trulove.

On January 6, following a grant of rehearing on direct appeal, the California Court of Appeal for the First Appellate District reversed the murder conviction of Jamal Trulove on claims of IAC and prejudicial prosecutorial misconduct.

Trulove’s murder conviction relied entirely upon the eyewitness, whose initial description was very vague and who had sat in a police interview room for 2 to 3 hours with a mug shot of Mr. Trulove on the wall in front of her, without ever identifying him.  Her subsequent ID of him was tentative, and only many months later (after seeing him on an episode of a reality TV show) did the witness claim certainty.  Attorney Zilversmit located two witnesses in support of the new trial motion, who testified to Mr. Trulove’s innocence.  Nonetheless, the San Francisco Superior Court denied the motion and affirmed the verdict.  Five additional witnesses then came forward, and Zilversmit filed a habeas petition alongside the direct appeal.  The appeal raised claims of innocence based on eyewitness error, prosecutorial misconduct, and ineffective assistance of counsel.
The trial prosecutor had argued, without any support in the record, that the eyewitness was putting herself in danger by willingly implicating Mr. Trulove and that the jury should be as “courageous” as the witness.  The Court of Appeal initially affirmed the conviction and denied the writ.  Zilversmit then filed a petition for rehearing and reached out to NCIP for amicus support.  NCIP filed an amicus curiae letter brief in support of rehearing and of granting the writ.  The Court granted rehearing, ordered further briefing and reversed Mr. Trulove’s conviction on the grounds that the prosecutor’s argument was prejudicial misconduct and defense counsel’s waiver of the issue by failure to object deprived Mr. Trulove of the effective assistance of counsel.  The Court of Appeal denied the habeas petition as moot without ever evaluating the serious flaws in the eyewitness testimony or the impact of the seven additional defense witnesses on the strength of the case.  The California Attorney General is still deciding whether it will seek review in the California Supreme Court.

Wrongfully Jailed Man Dies in an Argentinean Prison

Luciano Peralta was the father of three children.  He earned his living as a gardener. He had recently separated from his wife, Esther Cerrudo, but the two were on very amicable terms. On Sunday, October 27, 2013, Esther asked Luciano to watch the kids while she took care of some personal matters.

Argentinian police officers allege that a neighbor called to report a robbery at Esther’s residence. When they arrived, the officers arrested Luciano in front of his children. They proceeded to seize his motorcycle and the bicycle that belonged to Luciano’s young son.

Luciano was imprisoned in La Plata, a province in the capital city. When his ex-wife and mother arrived at the prison, Esther explained that she had asked him to be there and the children at the house were Luciano’s children.  Nonetheless, they were told he would be spending the night in jail.

The following day, a public defender assured Luciano he would be free. She noted that he seemed lost and confused. Prior to his being released, Luciano began to suffer a panic attack. He started trembling and convulsing. His mother was at the prison, but she was not allowed to see him. The officers did not call a doctor nor did they call an ambulance. Luciano received no medical attention. Ultimately, he died in his cell.

Norma Silguero and Tatiana Peralta, mother and sister of the deceased. (Photo: @martinenlared)

Norma Silguero and Tatiana Peralta, mother and sister of the deceased. (Photo: @martinenlared)

We may never know the true motivations for the arrest or what really happened to Luciano at the jail.  This case is another example of tragedies that can result from wrongful arrests and the need for reform within the Argentinian police.

Follow me on Twitter: @JustinoBrooks

Professor Justin Brooks
Director, California Innocence Project
California Western School of Law
225 Cedar Street
San Diego, CA 92101
jpb@cwsl.edu
www.californiainnocenceproject.com

For more information please see:

<http://diagonales.infonews.com/nota-204205-Estuvo-preso-sin-causa-y-murio-en-los-Tribunales-de-La-Plata.html&gt;

Friday’s Quick Clicks…

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  • A Connecticut judge on Wednesday ordered a new trial for Michael C. Skakel, a nephew of Ethel Kennedy who was convicted in 2002 of bludgeoning a neighbor with a golf club in 1975, saying his original lawyer had not represented him effectively.
  • Two men exonerated by DNA evidence in the rape of a Washington woman have reached a $10.5 million settlement with the county that wrongly imprisoned them for 17 years.  Larry Davis, 57, and Alan Northrop, 49, were falsely convicted of raping a housekeeper in 1993, victims of technological limitations that prohibited the use of DNA testing on the small samples collected in the case. Ordered since then by a judge, and aided by the Innocence Project Northwest, to do conduct post-conviction DNA testing, Clark County (WA) retested the samples and found that neither belonged to the two men.  Since their release, Davis and Northrop have fought Clark County in pursuit of restitution, citing negligence by the sheriff’s office and the lead detective on the case, Don Slagle. Davis and Northrop were accused based on sparse details provided by a victim who was blindfolded throughout the crime. The county finally decided to settle once Slagle took the stand when it was revealed that he not only had other leads, but he completely neglected them to pursue Davis and Northrop.  Keep reading original story….
  • Baltimore police implement “double blind” lineup procedure
  • A federal judge has entered a default judgment against former Douglas County crime scene investigator David Kofoed in two wrongful prosecution lawsuits.  Matthew Livers and Nicholas Sampson sued several Nebraska law enforcement agencies and officials, including Kofoed, who spend two years in prison for evidence tampering in the case. Prosecutors said Kofoed planted blood evidence in a car to bolster a case against Livers and Sampson, who were later exonerated.  The other defendants agreed to pay a total of $2.6 million to the men to settle the suits.  Continue reading…
  • Three men who were sentenced to death only to be exonerated years later have a message for Ohio and the rest of America: Abolish the death penalty because the judicial system doesn’t work.  Delbert Tibbs, Joe D’Ambrosio and Damon Thibodeaux, who collectively spent almost 40 years on death row before being set free, are giving 10 talks in five days in Ohio this week in hopes of persuading people to oppose the death penalty.  Continue reading....

Friday’s Quick Clicks…

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  • In Vermont, an aggravated murder charge against John Grega, a Long Island, N.Y., man charged with killing his wife in 1995, has been dismissed, because of difficulties with additional DNA testing. The dismissal of the second murder charge against Grega comes a year after his 1996 conviction was dismissed, and a new trial ordered, because of new DNA evidence. Windham County State’s Attorney Tracy Shriver announced late Wednesday that murder charges against Grega would be dismissed without prejudice because of difficulties finding a lab to do necessary DNA matching of evidence taken from Christine Grega’s body.
    Shriver, in a joint statement with Vermont Assistant Attorney General Cindy Maguire, said they “remain committed to continuing this investigation to seek justice for Christine Grega and her family.”  In 2012, new DNA testing had revealed the presence of an unknown man’s DNA in her body, the discovery of which resulted in a judge ordering a new trial.
  • A U.S. judge ordered a new trial Wednesday for a Philadelphia man sentenced to death in 1992 for killing a high school student for her gold earrings.  U.S. District Judge Anita Brody found that James Dennis’ conviction was based on dubious eyewitness testimony, bad police work and a poor defense by his lawyer, The Philadelphia Inquirer reported. She said he must be freed if he is not retried within six months.
  • In India, Supreme Court limits right of intermediate courts to overturn acquittals

Direct TV commercial demonizes wrongly convicted

Fresh off a survey published in Legal and Criminal Psychology showing that many people show “contemptuous prejudice” toward the wrongly convicted, Direct TV is running a commercial that could make perceptions even worse.

The commercial apparently first ran in 2012, but it is now back on the airwaves. It shows how a lawyer who endured the frustrations of relying on cable TV failed to do his job, leading to his client’s wrongful conviction. It then shows the wrongly convicted man in prison longing for the day he can have his revenge on the attorney. The final scene shows the lawyer’s house blowing up as he arrives home one day.

The intended message is that cable TV is bad for you and that you should get Direct TV. But another message is that the wrongly convicted are angry and dangerous people when they are released. This is exactly the wrong kind of message those struggling to overcome a wrongful conviction need.

Monday’s Quick Clicks…

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Attacks on experts who testify for the defense keep on coming

One of the best ways end the scourge of wrongful convictions is to prevent them from occurring in the first place. That starts with competent defense teams backed by expert witnesses and unbiased news coverage. But that doesn’t always happen.

Phil Locke reported here how vicious social media attacks on an experienced expert witness for the defense in the heated Jodi Arias murder trial put her in the emergency room for anxiety attacks and palpitations. Experts asked to testify for the defense in controversial trials undoubtedly take note.

Now The Seattle Times has been rebuked by the independent Washington News Council for inaccurately and unfairly representing the work of a forensic psychologist who testifies for defense attorneys in its investigative series on the state’s sexually violent predator program. Relying on prosecution sources, the council said, reporter Christine Willmsen unfairly portrayed Richard Wollert as a hack who promulgated unorthodox theories in order to line his own pockets, quoting detractors who called him an “outlier” who spoke “mumbo jumbo.”

During a June 1 hearing, Wollert said the Times series had “tainted the Washington jury pool” by implying that psychologists who testify for the defense are not credible, damaged his professional reputation and caused his income to plummet.

“By relying almost exclusively on prosecution sources,” forensic psychologist Karen Franklin wrote in her In the News blog, “Willmsen became nothing more than a mouthpiece for government efforts to discredit and silence experts who present judges and juries with information that they don’t like.” She added:

“The main theme of the series was that defense-retained experts were gouging the state. Willmsen wrote that Wollert made more than $100,000 on one SVP case; in a video from the series, Wollert is shown testifying that he earned $1.2 million from sexually violent predator cases in Washington and other states over a two-year period. That’s a big chunk of taxpayer money, and the revelation undoubtedly caused public outrage against defense attorneys and their experts.

“Willmsen wrote that government experts were not paid that much. However, this is patently false. While Willmsen was researching the series, a California psychiatrist who is popular with Washington prosecutors was charging $450 per hour (the average among forensic psychologists being about half that) and — like Wollert — had billed more than $100,000 in a single case. His name does not show up anywhere in the series.

“Following publication of the series, Washington capped the fees of defense-retained SVP experts at $10,000 for evaluations, a fee that includes all travel expenses, and $6,000 for testifying (including preparation time, travel, and deposition testimony). There is no legal cap on the fees of prosecution-retained experts.”

That was a big victory for prosecutors, with an assist from the press, and a big loss for those trying to protect the potentially innocent.