Category Archives: Legislation

Justice System Reform – Why We Can’t Get it Right. It’s All About Root Cause.

“Chicago police call for tougher penalties for firearm offenses after dozens of people were shot over holiday.”

You may have heard that dozens of people were shot in Chicago over this recent 4th of July weekend.  I just saw the headline above, which is the response from the Chicago police to the tragic weekend.  What struck me immediately is that this reaction is so stupidly human.  But sadly, it’s human nature.  To most, it would appear to be a quick-response, expedient solution to a terrible problem; and it’s the expediency of this “solution” that makes it attractive to both the politicians who make the laws and the constituency that elects them to office. The belief is that we can pass a law, make the penalties harsher, and then say, “There, we solved THAT problem.”  But guess what?  This will NOT solve the problem, and it NEVER will.  The US justice system has a culture of “punishment” and “revenge”.  We always seem to believe that the threat of more severe punishment will serve as a deterrent to future evil-doers.  The standard political response to the problem of “crime” has always been more cops, more prisons, and tougher sentences.  Well … the US already has the most draconian sentencing laws in the world, and yet, even though we have only 5% of the world’s population, we have 25% of the world’s prisoners (see Convictions  by the Numbers).

Doesn’t seem like super-tough sentences have done much to stem the US crime problem, does it?  And we know this.  Yet we, as an electorate, keep insisting from our legislators that there be more cops, more prisons, and ever tougher sentences.  It’s gotten to the point of being downright silly – tragic but silly.

So what should we do?  To fix any problem, you have to understand, and deal with, the root cause.  Unless you eliminate the root cause, the problem will not go away.  You can try to treat the symptoms of the problem (e.g. gun deaths in Chicago), but the problem will persist.  And I don’t believe we even know and understand what the root cause(s) of most crime are. I would expect that they’d have something to do with things like poverty, education, discrimination, culture, mental health issues, and more.

[Editorial observation:  I suspect that so-called "crimes of passion" are something that will always be part of the human condition, and we're just stuck with them.]

Unfortunately, dealing with root cause is much, much more difficult than dealing with the obvious symptoms of a problem, and I believe this is largely why it doesn’t get done.  It takes lots of time, lots of money, and lots of effort – and who wants to do that when you can just pass a law making sentences harsher, and then tell yourself you’ve just addressed the problem?  It is absolutely human nature to jump to what seems to be the quickest, easiest solution, despite the fact that the “solution” may not cure the problem at all.

There ARE systematic ways to uncover root cause.  They involve structure, process, and data.  Please see our previous post on Six Sigma.  Root cause is at the very core of what Six Sigma is all about.  Unfortunately, given our justice system and our processes for enacting laws, I see no feasible way root cause analysis and corrective action could be applied to the US justice system – at least certainly not within my lifetime.  I expect that we’re just going to have to continue stumbling along with our electoral and legislative processes, and hope that some day enough voters and enough legislators eventually “get it.”

Court Reexamines Arson Murder Conviction In Fort Stockton, Texas

A so-called “Junk Science” law passed in 2013 in Texas has helped enable review of the case of Sonia Cacy, 66, of Fort Stockton. Cacy was convicted of the 1991 murder by arson of her uncle, William Richardson. She has claimed innocence in the fire that swept through the small home they shared. The Innocence Project of Texas has been fighting for several years for her exoneration.

Cacy was sentenced to 99 years in prison but was paroled in 1998 after serving six years. According to the Innocence Project, post-conviction review of the case that included testimony from several experts was successful in securing her release. She’s had difficulty finding employment and housing and has been working for more than 20 years for exoneration to clear her name and her record of the conviction.

Cacy’s lawyers this week presented evidence supporting her innocence in two hearings, Monday and Tuesday, in Fort Stockton. Judge Bert Richardson expects to take several months to release his ruling.

According to several media reports, at trial a Bexar County toxicologist testified to jurors that gasoline was found on Richardson’s clothes, but several fire experts Continue reading

Thursday’s Quick Clicks…

UK Supreme Court Rule on Access to Evidence Post-Appeal

400px-uk_supreme_court_badgeThe Supreme Court of England and Wales has today ruled in the case of Kevin Nunn, an important ruling concerning the right of a convicted prisoner to access evidence in his case after he has been tried, and lost an appeal. Nunn had applied to the CCRC, claiming to be innocent of the murder of his girlfriend in 2005. Nunn is serving a life sentence for the murder. The CCRC denied a request to DNA test fluids found on the victim’s body. Nunn then applied through the Courts to gain access to the evidence in his case to have it re-tested (at his own expense). The Supreme Court this morning were ruling on whether he had the right to demand this evidence from the police and Crown. The full ruling (of just over 9 minutes) can be watched on YouTube here…. There has been some reporting of this morning’s judgement here…

Supreme Court rejects Kevin Nunn’s evidence release plea

Kevin Nunn: Lifer loses forensic tests fight eight years after murder conviction

There has also been a blog post, expressing unease – particularly as it lays a heavy burden upon the CCRC, who have not been known in the past to always make the right decision with regard to the re-testing of evidence. see here….

Kevin Nunn Case – Supreme Court application dismissed

I have jotted down a very quick summary of the main points of the unanimous judgement (which was mercifully short).

This appeal concerns the extent of disclosure duty AFTER the close of the case and any appeal. Police declined to keep going back to the evidence. Were they allowed to take this stance? Were they under the same duty of disclosure?

Unanimous decision that duty of disclosure does NOT continue unaltered after the trial. Up until end of trial he is presumed innocent. Once convicted he is no longer presumed innocent, but rather is proven guilty.

There remains a public interest in any flaw in his conviction being exposed. No-one ought to remain convicted if the conviction is unsafe. BUT also an important public interest in the finality of the process, for the family, witnesses etc. but also because of resources. There should not be indefinite re-investigations take resources away from new investigations.

There is a duty of disclosure but it is now more limited after trial. Guidelines issued by AG set out rules. Police and prosecutors must provide defendant with anything new if it casts doubt on the safety of the conviction. They must cooperate in further inquiry if the new inquiry has a real prospect of casting doubt. Not speculative reinvestigation simply because the defendant does not accept the decision of the jury.

In England and Wales, and Scotland, there is a specialist body charged with investigating suspected miscarriages of justice (CCRC). The existence of this body is another reason why there is no occasion for the Crown’s duty of disclosure to continue unaltered after conviction. If there is a proper inquiry on a topic where these is a real prospect that the conviction might be shown to be unsafe, the police and prosecution ought not to wait for an approach from the CCRC, but should cooperate in the inquiry.

If DNA retesting had a real prospect of showing that someone else committed the crime, then the continuing duty of disclosure would apply to it. on the facts of this case, it would not. It was known at the trial that the fluid could not have come from the defendant. Retesting in this case would not eliminate the defendant. A request for DNA testing should be dealt with according to the principles set out under the AG Guidelines.

 

Open Disclosure by Federal Prosecutors is Goal of Proposed Bill

The Center for Prosecutor Integrity (CPI), a non-profit organization which seeks “to preserve the presumption of innocence, assure equal treatment under the law, and end wrongful convictions” today released a proposed bill that would require federal prosecutors to implement an open-file policy. The bill addresses a weakness in the implementation of the Brady requirement to disclose all exculpatory evidence to the defense: Prosecutors currently determine what evidence is “material” (would likely impact the outcome of the case) and therefore subject to disclosure.

CPI’s Registry of Prosecutorial Misconduct has revealed that Brady violations —prosecutorial failure of the constitutional requirement to disclose exculpatory evidence relevant to the guilt or innocence and to the punishment of the defendant — as the leading type of misconduct by federal prosecutors.

The Federal Prosecutor Integrity Act would mandate that federal prosecutors, beginning at the time of arraignment, disclose all documents, scientific tests, witness statements, and other relevant evidence to the defense. Any additional information and evidence would need to be disclosed as the case progresses. Continue reading

Forcing forensic-science reforms hasn’t been easy

When the National Academy of Sciences issued a seminal report on the sad state of forensic science five years ago, many hoped it would quickly lead to reforms and fewer wrongful convictions. That hasn’t happened — at least so far.

In a comprehensive review here, Chemical & Engineering News reports that ”little has been done to shore up the discipline’s scientific base or to make sure that its methods don’t result in wrongful convictions. Quality standards for forensic laboratories remain inconsistent. And funding to implement improvements is scarce.”

Even worse, the journal says, some are beginning to wonder if much will be done in the new future without continued advocacy from reform-minded scientist and their allies. The fight is far from over.

Thursday’s Quick Clicks…

Wednesday’s Quick Clicks…

Friday’s Quick Clicks…

Tuesday’s Quick Clicks…

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

Wednesday’s Quick Clicks…

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  • New York Attorney General Eric Schneiderman plans to unveil legislation Wednesday that would make it easier for people wrongfully convicted of crimes to recover damages from the state.  Schneiderman’s Unjust Imprisonment Act would strip away restrictions in state law that block claims from people who were coerced into false confessions or who pleaded guilty to crimes they did not commit.  Full article here.
  • Pennsylvania Innocence Project hiring an investigator
  • Another chance for the U.S. Supreme Court to say no to prosecutorial misconduct
  • Missouri considers eyewitness id and videotaped interrogations reform
  • Opening of sealed records in Orange County, CA shows improper use of informants

Forensic Science Reform Bill Introduced in U.S. Congress

Press release:

Senator John D. (Jay) Rockefeller IV, Chairman

For Immediate Release
http://commerce.senate.gov                                              Contact: Kevin McAlister, 202-224-8374
February 12, 2014

ROCKEFELLER INTRODUCES BILL TO ADVANCE FORENSIC SCIENCE REFORM

WASHINGTON, D.C. — Chairman John D. (Jay) Rockefeller IV today reintroduced legislation to strengthen the criminal justice system, by prioritizing scientific research and supporting the development of science-based standards in the forensic disciplines.

Rockefeller’s bill, The Forensic Science and Standards Act of 2014, aims to bolster forensic science reform efforts and to maintain long-term cooperation between scientists, the legal community, law enforcement, forensic practitioners, and advocacy groups.

“We’re making real progress toward strengthening forensic science, but more must be done,” said Rockefeller. “My bill would formalize collaboration between scientists and the criminal justice system, which is the only way to put our forensic evidence standards on a solid scientific footing. This important work will help convict the guilty and protect the innocent.”

The Forensic Science and Standards Act of 2014 continues Rockefeller’s work from a related 2012 bill introduced in response to the 2009 National Academies report, Strengthening Forensic Science in the United States: A Path Forward.  The report found that the interpretation of forensic evidence can be severely compromised by the lack of supporting science and standards.

Since the report’s release, Rockefeller has focused on supporting basic research in forensic science and on improving standards of practice. Rockefeller has convened three Commerce Committee hearings to highlight the need for scientific research, for enforceable national standards, and for Federal government leadership to validate and standardize forensic disciplines nationwide. The recently established National Commission on Forensic Science implements a provision in Rockefeller’s original bill, which calls for the creation of this entity.

A wide range of organizations have supported the need for basic research and standards development in the forensic sciences. Reform advocates have included the Innocence Project; the National Association of Medical Examiners (NAME); the American Statistical Association (ASA); the National Association of Criminal Defense Lawyers (NACDL); and the National Association for the Advancement of Colored People (NAACP), which is particularly concerned about the potential for bias in the criminal justice system.

A copy of the bill is available here.

To implement needed reforms, the Forensic Science and Standards Act of 2014 would:

         Require standards development: NIST would be directed to develop forensic science standards in consultation with standards development organizations and forensic science stakeholders. NIST would also be permitted to establish and solicit advice from discipline-specific expert working groups to identify standards development priorities and opportunities.

         Implement uniform standards: The bill would direct a national commission on forensic science – chaired by the Director of NIST and the Attorney General and comprised of research scientists, forensic science practitioners, and legal and law enforcement professionals – to recommend new science-based standards.  It would also require the Attorney General to implement these standards in Federal forensic science laboratories and to encourage standards adoption in non-Federal laboratories.

         Promote research: A National Forensic Science Coordinating Office would be established to develop a forensic science research strategy and to support the implementation of that strategy across relevant Federal agencies. The National Science Foundation would be directed to support forensic science research and the creation of forensic science research centers. All agencies with equities in forensic science would be encouraged to stimulate innovative and creative solutions to satisfy the research needs and priorities identified in the research strategy.

UK Parliamentary debate on definition of a ‘miscarriage of justice’

There have been recent moves by the government in the UK, to severely restrict access to compensation for victims of miscarriages of justice. There has rightly, been (muted) outrage about the proposed requirement that the person claiming compensation had to prove their ‘innocence’ to be eligible for compensation. (see post here…)

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“A statutory definition was first attempted by the government as part of the Anti-social Behaviour, Crime and Policing Bill, which originally stated a miscarriage of justice has occurred if new evidence must “show beyond reasonable doubt that the person was innocent of the offence”. When the bill progressed to the House of Lords, peers voted to defeat the government and change the wording so that the new evidence “shows conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it”.

The debate on the amendment and the definition of a ‘miscarriage of justice’ is available here….  For those of us involved in miscarriages of justice in the UK, this is essential viewing – and those interested in how authorities approach these issues. It is a long debate, but very very interesting! There has been limited reporting so far of the debate – but you can see one article here…

Wrongly jailed in UK may not get redress

Friday’s Quick Clicks…

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With Today’s Release of the San Antonio Four, Texas Now On the Cutting Edge of Efforts to Free the Innocent

From the Huffington Post:

Today in Texas, four wrongfully convicted women–known as the “San Antonio Four”–had their convictions overturned and were freed. This came about thanks to the latest in a line of innovations Texas lawmakers and the Innocence Project of Texas have devised to help the wrongfully convicted. Often thought of as a rough-and-tumble, “Hang ‘Em High” state–and still leading the nation in capital punishment–Texas is surprisingly now a trendsetter for innocence reforms.

The four women exonerated today–Elizabeth Ramirez, Kristie Mayhough, Anna Vasquez, and Cassandra Rivera–were caught up in the infamous line of ritualistic child sex abuse hysteria cases of the 1980s and early 1990s. Many of these cases involved allegations against day care workers, and many experts now believe that most of the convicted were innocent victims of the witch-hunt mentality prevalent in that era…………

Read entire article here….

Convictions quashed on application of Singapore Attorney General’s Chambers

An interesting case was heard by the Singapore High Court in October, 2013. The Singapore Attorney General’s Chambers (AGC) made an application to the High Court to review and set aside the conviction of Thomas Tay, who had been sentenced six years ago under the Securities and Futures Act. The High Court quashed Tay’s convictions and returned him the $240 000 fine he had paid.

The AGC had applied for a review of Tay’s case based on the acquittals of other individuals linked to Tay’s case.

This is an interesting case of criminal revision being initiated by the Singapore AGC, instead of by the Court or the accused. Based on Singapore’s written laws (as opposed to common law), a criminal case that has exhausted the appeals process can presently only be revisited based on S. 400 (1) of Singapore’s Criminal Procedure Code. This provision allows the High Court to study the record of criminal proceedings brought before any Subordinate Court to satisfy itself of “the correctness, legality or propriety of any judgment, sentence or order recorded or passed and as to the regularity of those proceedings.” Note that under S. 400 (1), this ability to review cases is limited to the High Court and only applies to cases previously heard before Subordinate Courts. S. 400 (1) therefore does not cover many serious offences which carry severe penalties and fall within the High Court’s original jurisdiction. It was fortunate that Tay’s case fell within the narrow limits of S. 400.

Though it is encouraging that the AGC took the initiative to apply for a review in the Tay case, and though the Singapore Court of Appeal has recognised the possibility that it may review cases to prevent wrongful convictions, the Tay case shows that there is need for legislature to be passed in Singapore that clearly recognises the ability Singapore Courts to review criminal cases to prevent wrongful convictions or serious injustices, regardless of the court before which the case was first heard and regardless of the lapsing of appeal timelines.

Wednesday’s Quick Clicks…

  • Innocence Project New Orleans is hosting a fundraiser featuring David Simon and the cast of HBO’s Treme, which shined light on flawed criminal justice system
  • The Minnesota Innocence Project and a Twin Cities law firm are digging for legal flaws that could free five men convicted of killing a co-worker in Green Bay 21 years ago. The five were convicted of killing Tom Monfils in 1992 at what was then the James River paper mill.  Monday night, almost four dozen people took part in an annual walk and rally for the defendants. Denis Gullickson told them that two attorneys from Minnesota are examining the case for free – as is the St. Paul-based equivalent of the Wisconsin Innocence Project, which has succeeded in freeing a number of high-profile inmates who were wrongly convicted.  More details
  • Diary of a UK Innocence Project Part 3:  Students, students everywhere and not a stop to think
  • Illinois hopes to stem wrongful convictions with new interrogation law

Tuesday’s Quick Clicks…

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  • The Irish Innocence Project may be on the verge of its first exoneration
  • Chicago taxpayers will spend $12.3 million to compensate two more exonerated inmates who claim they were tortured into false confessions by convicted former Area 2 Cmdr. Jon Burge, keeping former Mayor Richard M. Daley off the hot seat.  The identical $6.15 million settlements will go to Ronald Kitchen and Marvin Reeves, who spent more than two decades in prison for the 1988 murders of five they did not commit.  It marks the third time that cases settled by Mayor Rahm Emanuel have spared Daley from answering questions under oath about allegations that — as state’s attorney and as mayor — he failed to investigate police torture allegations against Burge and participated in a conspiracy to cover it up.
  • In Illinois, DNA that exonerated one man points to a new suspect
  • In Virginia, lawmakers consider moves that would speed up exoneration process and rate at which exonerees obtain their compensation

Ohio to Assist Ex-cons Seeking Work; The Peculiar Place of the Exonerated

Getting a job with prison on your resume isn’t easy. That’s an understatement, but tomorrow ex-offenders in Ohio will get free advice—including information on starting a business and finding the resources to return to school—and even free proper business clothing to help them get back into the workplace. The event, free and open to ex-offenders, will be held at Columbus State Community College. Thanks to several government agencies involved and to Ohio Development Director David Goodman for this initiative. Goodman also sponsored Senate Bill 77, the bill that enacted best practice reform aimed at reducing wrongful conviction.

Which brings to mind the peculiar place of the exonerated. One would presume that tomorrow’s program would also welcome those wrongfully convicted, because, unfortunately, many still face the stigma of prison even though they did not deserve to be there. Continue reading