Category Archives: Inquisitional and adversarial systems of justice

A Push to Aid American Couple Held in Child’s Death in Qatar

http://mobile.nytimes.com/2014/05/12/world/middleeast/a-push-to-aid-couple-held-in-childs-death-in-qatar.html?referrer=

http://bit.ly/1mSlVTv

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

www.redinocente.org
www.californiainnocenceproject.org

Breaking News: Court Decides to Reopen Hakamada Case

Previous posts on Hakamada case here and here.

This is a case from 1966. Iwao Hakamada has been held in confinement for 48 years. He is at Tokyo Detention Center, on death row.

Shizuoka District Court granted Hakamada’s petition for retrial today, saying that a new DNA testing result indicates that one crutial piece of evidence did not come from Hakamada.

It is the 6th time since 1945 that the courts grant a retrial in a death penalty case. However, the prosecutors still have a chance to appeal the decision.

PostScript:
Iwao Hakamada was released from the Tokyo Detention Center at around 17:20 JST on March 27th, 2014.

From Mainichi Shimbun News:
Court decides to reopen 1966 murder of 4

SHIZUOKA, Japan (Kyodo) — The Shizuoka District Court decided Thursday to reopen a high-profile 1966 murder case in which a former professional boxer has been on death row for more than 30 years for killing four people.

The court also decided to suspend the death penalty for Iwao Hakamada, 78, who was convicted of murdering Fujio Hashimoto, 41-year-old managing director of a soybean processing firm, his wife and their two children and setting fire to their home on June 30, 1966, in Shimizu city, Shizuoka Prefecture, which is now a part of Shizuoka city, as well as his detention.

During the petition for a retrial, his defense lawyers obtained DNA test results that indicated the DNA-type from blood stains detected on five pieces of clothing, which were said to have been worn by the culprit, is different from Hakamada’s.

Accepting the argument, Presiding Judge Hiroaki Murayama said, “The clothes were not those of the defendant,” indicating the possibility that investigators had fabricated the evidence.

Murayama also said, “It is unjust to detain the defendant further, as the possibility of his innocence has become clear to a respectable degree.”

It is the sixth time in postwar Japan that a court has approved a retrial for a defendant for whom capital punishment had been finalized. Of the other five, four were acquitted.

Hakamada, a live-in employee at the soybean processing firm, temporarily admitted to the charges after being arrested in August 1966, but changed his plea to one of innocence from the first court hearing.

Despite his plea, the Shizuoka District Court sentenced him to death in 1968, with the sentence finalized by the Supreme Court in 1980.

He filed his first appeal for a retrial in 1981, which was rejected by the top court in 2008, prompting his sister Hideko, 81, to file a second appeal immediately.

Despite the district court decision, it may still take time before a retrial can begin as prosecutors, who argued that the reliability of the DNA test is low, are expected to appeal the decision to the Tokyo High Court.

The defense team has urged prosecutors not to appeal, given that Hakamada’s mental state has deteriorated during almost 50 years in prison. Amnesty International Japan also issued a statement seeking the immediate start of a retrial, saying, “It is not too much to say that the unfair, long-time detention of a death row inmate is torture.”

After hearing the decision, Hideko said, “I am truly thankful,” while Katsuhiko Nishijima, who heads the defense team, said, “Mr. Hakamada’s strong desire has finally been attained.”

Continue reading

Friday’s Quick Clicks…

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New Scholarship Spotlight: The Need for Defense Access to the Law Enforcement DNA Database

Jason Kreag has posted Letting Innocence Suffer:  The Need for Defense Access to the Law Enforcement DNA Database on SSRN.  Download here.   The abstract states:

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants’ innocence post-conviction. This Article fills that void by identifying a limited due process right to defense-initiated DNA database searches. The Article argues that the database is a powerful truth-promoting tool that should be available to law enforcement and defendants alike. Because legislators have failed to promote the search for actual offenders through statutory rights of access, this Article presents the constitutional authority for defense-initiated searches to vindicate the rights of innocent defendants.

Wednesday’s Quick Clicks…

  • Is forensic odontology too unreliable?
  • Exoneree Johnathan Montgomery takes it one day at a time
  • Missouri considers eyewitness identification reform and DNA preservation bill
  • Greg Wilhoit, a former Oklahoma death-row inmate from Tulsa and nationally-known anti-death penalty advocate whose story was included in author John Grisham’s “The Innocent Man,” died Feb. 14 in Sacramento, Calif., family members said. He was 59.  Full article here
  • Upcoming symposium at the Penn Quattrone Center:  A Systems Approach to Conviction Integrity

Insane DNA Testing Decision in Texas…

Decision here

How can you prove that biological material exists to text on the items in question unless you do the testing?  Boggles the mind…

From the Austin Chronicle, by Jordan Smith…

Death row inmate Larry Swearingen cannot prove that biological materials exist on evidence connected to the 1998 murder of Melissa Trotter – including on the alleged murder weapon – and therefore is not entitled to DNA testing of those items, the Court of Criminal Appeals ruled this morning.

Swearingen was convicted and sentenced to die for the 1998 murder of 19-year-old Trotter, a Montgomery County community college student who disappeared from her college campus on Dec. 8, 1998. Her body was found several weeks later, by a group of hunters, in the Sam Houston National Forest near Lake Conroe.

Swearingen was seen with Trotter on campus not long before she disappeared. He has maintained his innocence and has been seeking DNA testing for a decade. Among the never-before-tested items of evidence are two lengths of pantyhose – one used to strangle Trotter, found around her neck, the other later found by Swearingen’s former landlord inside a house Swearingen and his wife had previously rented from the man.

The state maintains that visual comparison proves the two pieces came from a single pair of hose. Neither piece has ever been subjected to DNA analysis.

In ruling against Swearingen on Wednesday, Judge Paul Womack wrote for the unanimous court that a district court ruling that last year approved the requested DNA testing would be overturned because Swearingen “cannot prove the existence of biological material” that could be tested. Although the defense presented to the district court expert testimony that biological evidence would “likely” be found on the pantyhose that is not enough to secure testing, the court ruled. “[W]e have explicitly held that appellee must prove biological material exists and not that it is merely probable.”

In other words, without testing, there can be no testing.

The court’s conclusion also precludes any testing of cigarette butts found near Trotter’s body or of Trotter’s clothes, absent a showing that biological material exists on each item.

Only finger nail scrapings taken from Trotter are considered “biological evidence per se” and thus not restricted by the need to prove DNA exists before testing can be done. Only some of the collected scrapings were tested, and material found from under one of Trotter’s fingernails produced DNA from an unknown male.

Still, that result is not enough to convince the court that if additional testing were to be performed it would do anything to convince a jury of Swearingen’s innocence. “In order to be entitled to DNA testing,” Womack wrote for the court, “[Swearingen] must show by a preponderance of the evidence (51%) that he would not have been convicted if the exculpatory results were available at trial.”

Indeed, the unidentified profile previously identified was presented to Swearingen’s jury, the court notes, apparently without effect. “Since the jury already was aware that an unidentified male’s DNA was found under the victim’s fingernails, we fail to see how other such results would have changed its verdict,” Womack wrote. “The jury chose to believe that the foreign DNA either was contamination or that it came rom outside the context of the crime.” In short, the court concluded, Swearingen “cannot show that new testing would lead to a different result.”

During a December hearing on the matter before the CCA, Montgomery County prosecutor Bill Delmore told the court that the mountain of circumstantial evidence against Swearingen is insurmountable and that even if further DNA testing revealed additional evidence from another male – even from a known “serial killer” – that he would conclude only that Swearingen had an accomplice. “Nothing will ever convince me of his innocence,” Delmore said.

 

 

Wednesday’s Quick Clicks…

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  • The unintended consequences of compensating the exonerated
  • Canada’s system for reviewing alleged wrongful convictions “failing miserably”
  • West Virginia University Law Innocence Project pushes interrogation recording bill
  •  What does a record number of U.S. exonerations in 2013 tell us?
  • ESPN video on the wrongful accusation against Richard Jewel for the 1996 Atlanta Olympics bombing
  • Ex-cop exonerated after 20 years in prison awarded $9 million
  • Mexican lawyers turned filmmakers win civil suit against them brought by family of victim in wrongful conviction case they exposed through the documentary Presumed Guilty
  • Planned changes in UK’s compensation laws for exonerees will make it nearly impossible to obtain compensation after wrongful conviction
  • New Zealand Innocence Project re-ignites debate about the need for a wrongful convictions commission
  • Idaho Innocence Project client Sarah Pearce may soon be released—settlement discussions ongoing