Category Archives: Police conduct (good and bad)

Update on the National Registry of Exonerations

In case you haven’t been able to check in on the National Registry of Exonerations lately, here’s an excerpt from the most recent data.  Note the total is now up to 1,512, and the trend line is definitely UP.

exon dna non

exon cont fact

exon fact crime

I won’t belabor you by pointing out some of the more obvious observations.  Just a few minutes of study will (should) lead you to some very clear conclusions.

It has been reported that the folks at the Registry are hard at work trying to incorporate the exonerations being generated by the newly formed “conviction integrity units” (CIU’s).  For these cases the prosecutors running the CIU’s may not be very motivated to have their exonerations logged into the Registry.

I can’t gush enough about how critical and important this data is.  It is this kind of HARD DATA that will provide the foundation for much needed and long overdue justice system reform.

Wrongly Convicted NY Man Dies 4 Months After $7.5M Compensation

Dan Gristwood was convicted in 1996 of attempted murder for beating his wife with a hammer.  He signed a confession, that he did not write, after 16 hours of interrogation by the NY State Police.

In 2003, the real attacker, Mastho Davis, came forward and confessed. Gristwood was released in 2005, and ultimately awarded $7.5M for his nine years of wrongful incarceration.

Sadly, on January 3, 2015, four months after receiving payment, Dan Gristwood died from lung cancer.  See the ABC News story here.

The syracuse.com story about the case here is definitely worth a read, and reads like a script for the prototypical coerced confession.

In light of all the recent public – and police – furor about police conduct, and how they relate to the community, and how they should be respected, I can do naught but shake my head.  When the police do stuff like this, how can they claim any high ground in this discussion?  Dan Gristwood, after his release, said he thought the problem was a “few bad apples.”  That may very well be so, but guess what? Those “few” bad apples make the whole barrel stink.  And this problem belongs to the police – not the public.

Radley Balko’s Predictions for Civil Liberties in 2015

I suspect that most of the readers who tune in to this blog are familiar with Radley Balko, who writes for the Washington Post.  He has been writing about justice system issues for a number of years, and has authored the books Rise of the Warrior Cop – The Militarization of America’s Police Forces and Overkill: The Rise of Paramilitary Police Raids in America.

He has just issued his 2015 predictions for civil liberties in the US.  You might ask why civil liberties are being covered in the Wrongful Convictions Blog.  But I submit – wrongful conviction and wrongful incarceration (and, most of all, wrongful execution) are the ultimate civil rights violations.

His predictions are sobering – SOBERING – at best.  You can read them here: Horrifying Civil Liberties Predictions for 2015.

I encourage you to read all the way through to the end.  But if you find yourself running short of time, you HAVE to skip to the last paragraph.

Police Want to Revoke Exoneree Bennie Starks’ Certificate of Innocence

Bennie Starks was released from prison in 2006, after serving 20 years for a rape that DNA proved he did not commit.  He was fully exonerated in 2013, and was granted a Certificate of Innocence by the court.

Starks is now suing the Waukegan, IL police department and the forensic experts who falsely testified against him.  As a consequence of this law suit, the Waukegan police are trying to have Starks’ Certificate of Innocence revoked. Their fear is that the Certificate of Innocence will be a deciding factor in Starks’ civil law suit for compensation.

Dr. C. Michael (Mike) Bowers is a California dentist and enlightened forensic odontologist. He also edits a blog called Forensics in Focus.  Dr. Bowers was involved in the exoneration of Bennie Starks, and has posted his comments about this on his blog here.

Appeals Court Dismisses Debra Milke Murder Charges

We have previously posted about the Debra Milke case here and here.

Milke was originally convicted of murder for having her 4-year-old son killed. The conviction rested upon the testimony of a rogue cop, who claims she confessed to him, although there is no documented record of that confession, and Milke denies it ever happened. This officer had a history of substantial misconduct, and that record was withheld from the defense.

In a ruling just today – citing “egregious prosecutorial misconduct,” the Arizona Court of Appeals on Thursday ordered a Maricopa County Superior Court judge to dismiss murder charges against Debra Milke with prejudice, meaning they cannot be brought again.

See the azcentral story here.

Recent Rash of Exonerations Only the Surface: Many More Remain Wrongfully Imprisoned

By Jefferey Deskovic for The Huffington Post

Fernando Bermudez. Sami Leka. Jose Morales. Reuben Montalvo. Lazaro Burts. Kareen Bellamy. Anthony Ortiz. Frank Sterling. Roy Brown. Dennis Halstead. John Kogut. Eric Glisson. Jonathan Fleming.

Those are the names of 13 men that I personally knew and served time with who were exonerated either during my 16 years in prison or thereafter.

Last year there were 91 exonerations. This year there have been 90 thus far. To date there have been 1482 exonerations overall, only 321 of them being DNA related. Since taking office this past January, Brooklyn DA Thompson’s conviction integrity unit has exonerated 11 people.

Most experts estimate the percentage of wrongfully convicted prisoners to be 2 to 5% of the inmate population — that is 120,000 people. I deem the number to be closer to 15 to 20%.

In either case, what is causing the staggering number of wrongful convictions?

Rogue Law Enforcement. In Brooklyn, disgraced retired detective Scarcella was found to have used the same drug addict as the sole eyewitness in six different murder cases. Various news accounts say as many as 70 homicides he worked on are being reviewed.

Forensic Fraud. In Pennsylvania, forensic scientist, Annie Dhookhan, was sentenced to three to five years in prison and two years of probation after pleading guilty to 27 counts of misleading investigators, filing false reports, and tampering with evidence.

Additionally, forensic scientists are given financial incentives for giving prosecutorial favorable results that lead to conviction in North Carolina, Illinois, Alabama, New Mexico, Kentucky, New Jersey, Virginia, Arizona, California, Missouri, Tennessee, and Wisconsin.

Prosecutorial Misconduct. Lying to judges and juries about the existence of benefits and in some cases coercion to informants was a regular practice over the span of the 23 year tenure of former Brooklyn DA Hynes, as was withholding of evidence of innocence.

Junk science. For 40 years, FBI experts have testified in court about “bullet lead analysis” a procedure in which bullets found at a crime scene are tested for arsenic, tin, silver, and other contaminants or additives, and the findings were compared to analysis of bullets found in the possession of suspects. These experts claimed to be able to link one bullet to others from the same production run. For at least 20 years, FBI officials knew that there were no scientific underpinnings to this junk science — that in fact, there were no studies shown to determine how significant a “match” was.

Disgraced dog scent expert Preston came into courtrooms in Texas and Florida for over 20 years, stating that he had trained dogs which would bark if, after being given items to smell from a crime, the dog recognized the scent from a suspect’s item. Preston claimed that his dogs could smell human traces years or months after a suspect walked over the ground, on heavily trafficked streets, underwater, and even after hurricanes. He is not the only “expert” in this “field.”

In 2013, it was revealed that in 27 death penalty cases, FBI forensic experts may have exaggerated the scientific conclusions that were drawn from a so-called “match” between hair found at a crime scene and hair from a defendant.

Tire tracks, footprints, and bite marks are also junk science.

I served 16 years in prison, from the ages of 17 to 32, wrongfully convicted of a murder and rape in New York, despite the fact that the DNA never matched. I lost all seven of my appeals, including two of which now US Supreme Court Judge Sotomayor denied on procedural grounds for having been four days late despite my substantive innocence argument. Ultimately I was exonerated because further DNA testing identified the actual perpetrator, who killed another victim 3.5 years later.

Using $1.5 million dollars of compensation I received, I started The Jeffrey Deskovic Foundation for Justice to exonerate the wrongfully convicted in DNA and non-DNA cases, educate the public, elected officials, and criminal justice professionals on the causes of wrongful conviction and the reforms need to prevent them, and help the exonerated reintegrate. In two years time, we helped exonerate William Lopez, who had served 23.5 years, and helped 4 wrongfully convicted men reintegrate back into society by providing short-term housing, which enabled them to pursue further education, and in one case open a business.

This holiday season, while celebrating with friends and family, we hope you’ll take a brief moment to remember all those who remain wrongfully imprisoned.

To learn more about The Jeffrey Deskovic Foundation for Justice and how you can help, please visit here.

Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases

Recently, NACDL and the Veritas Initiative at Santa Clara Law School released a major Brady study, titled-above.  NACDL’s description of the report reads:

Washington, DC (Nov. 17, 2014) – Today, at the National Press Club in Washington, DC, NACDL is officially releasing its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. Today’s event will feature comments by NACDL President Theodore Simon, NACDL Executive Director Norman L. Reimer (who also will moderate the event), and special guests David W. Ogden, former Deputy Attorney General who is now a partner at the WilmerHale firm, and the Hon. Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals. The report’s co-authors – VERITAS Initiative Director and Professor Kathleen “Cookie” Ridolfi, NACDL White Collar Crime Policy Counsel Tiffany M. Joslyn, and VERITAS Initiative Pro Bono Research Attorney Todd H. Fries – will also be discussing their findings and recommendations. NACDL Executive Director Norman Reimer will moderate the discussion.

“This groundbreaking study documents one of the major problems facing the nation’s criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person,” NACDL President Theodore Simon said.

Over 50 years ago, in Brady v. Maryland, the Supreme Court declared that failure to disclose favorable information violates the constitution when that information is material. This guarantee, however, is frequently unmet. In courtrooms across the nation, accused persons are convicted without ever having seen information that was favorable to their defense. The frequency with which this occurs and the role it plays in wrongful convictions prompted NACDL and the VERITAS Initiative to undertake an unprecedented study of Brady claims litigated in federal courts over a five-year period. The study asked: What role does judicial review play in the disclosure of favorable information to accused? The results revealed a troubling answer—the judiciary is impeding fair disclosure in criminal cases and, in doing so, encouraging prosecutors to disclose as little favorable information as possible.

The study’s findings are extensive and dramatic including, for example:

  • The materiality standard produces arbitrary results and overwhelmingly favors the prosecution. Indeed, in those decisions where the prosecution failed to disclose favorable information, it still won 86% of the time, with the court concluding that the information was not material.
  • Courts almost never find Brady was violated by the late disclosure of favorable information. Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.
  • Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53% of decisions involving the death penalty, but only 34% of all the decisions studied.

In his dissent to the Ninth Circuit’s 2013 decision denying a rehearing en banc in United States v. Olsen, Chief Judge Alex Kozinski acknowledged that “[t]here is an epidemic of Brady violations abroad in the land” which in his view, “[o]nly judges can put a stop to.” Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases documents that epidemic and sets forth a prescription for how to contain and ultimately cure it. As former Deputy Attorney General David W. Ogden wrote in his foreword to this report, “judges have an indispensable role and obligation to oversee the system’s guarantees of fairness and to make sure that its truth- and justice-seeking mission is fulfilled in each case.”

According to report co-author Cookie Ridolfi, “despite the clear correlation between withholding evidence and wrongful conviction, the results of this study demonstrate that courts persist in tolerating prosecutors’ failure to timely disclose favorable information.” “Judicial indifference toward late disclosure fosters non-compliance with disclosure obligations. The data strongly suggests that the practice of late disclosure has become a trial tactic rather than an allowance for exceptional circumstances,” added co-author Todd Fries. Co-author Tiffany M. Joslyn was clear, “at its core, judicial adherence to the materiality standard following conviction encourages prosecutors to use that same back-end standard to narrow their front-end disclosure obligations. Our study not only confirms this, it demonstrates that front-end reform is necessary and overdue.”

The report concludes by offering three reform proposals that would serve as mechanisms for increasing fair disclosure in criminal cases. First, in each case defense attorneys should request, and judges should grant ethical rule orders – orders for the prosecution to disclose all favorable information in accord with American Bar Association Model Rule 3.8(d). Second, the judicial rules and policies should be amended to require fair disclosure of information. Finally, the most effective mechanism would be to adopt legislation codifying fair disclosure in criminal cases.

Complete copies of the report, executive summary, and fact sheet are available at www.nacdl.org/discoveryreform/materialindifference. And by sometime on Tuesday, November 18, 2014, a link to the complete video of today’s release event featuring Chief Judge Kozinski, former Deputy Attorney General David Ogden, NACDL President Theodore Simon, and the report’s co-authors will also be available at that web address.

Here is C-SPAN’s coverage of the report’s release:  http://www.c-span.org/video/?322781-1/discussion-fair-disclosure-criminal-trials