Category Archives: Prosecutorial conduct (good and bad)

A Case for Mercy and Discretion in Criminal Justice

“I have always found that mercy bears richer fruits than strict justice.”

– Abraham Lincoln

So-called tough-on-crime policies in the United States over several decades have resulted in unanticipated changes in the criminal justice system that most Americans probably do not fully realize. Mandatory sentencing, policies such as “three strikes,” and increasing use of plea bargaining as opposed to jury trials have prompted an explosion in the prison population and unprecedented prosecutorial authority. With all due respect to those prosecutors who serve us well, we now know that increased power and immunity from abuses have enabled prosecutorial misconduct, a significant contributor to wrongful convictions.

While the Innocence Project and other organizations work to correct miscarriages and prevent others, and new models such as conviction integrity units seek to address the failure of the appeal process to correct conviction errors, a recent case demonstrated the appropriate use of an intact but rarely used remedy: mercy and discretion by public officials.

These capacities once broadly utilized by judges in sentencing may be the most efficient way to cure injustices whether wrongful convictions or unfair sentencing. In a recent illustration, no one questioned the guilt of Francois Holloway. The New York Times reported (here) and (here) that he was charged in 1995 with three counts of carjacking and using a weapon during a violent crime (he did not carry a gun but his accomplice did).

When the government prosecutor offered Holloway a plea deal with a prison term of 11 years, he declined. Holloway’s lawyer assured him that he would win at trial.

His attorney was wrong. Continue reading

98-year-old woman seeks to overturn 1950 spying conviction

Hysteria often breeds wrongful convictions. The anti-communist hysteria of the 1950s McCarthy era undoubtedly led to some miscarriages of justice, and Miriam Moskowitz says her espionage conviction was one of them. Now 98, Moskowitz says she wants to clear her name while she still has time, and has asked a federal judge to throw out her 1950 conviction. You can read about the case here.

More on Hakamada Case…

Previous posts on Hakamada case here and here.

From the Japan Times:

Prosecutors concealed evidence that could have cleared Hakamada, lawyers allege

Kyodo, Aug 6, 2014

Prosecutors have apologized for concealing critical evidence that might have cleared Iwao Hakamada, the former professional boxer who spent more than 40 years on death row before being released from prison in March, according to his lawyers.

The head of Hakamada’s legal team, Katsuhiko Nishijima, alleged at a news conference on Tuesday that prosecutors had admitted making incorrect claims, concealing the existence of photographic negatives showing bloodstained clothes said to have been worn by the culprit.

Hakamada, 78, was a live-in employee at a soybean processing company when he was arrested in August 1966 on robbery, murder and arson charges. The Shizuoka District Court sentenced him to death in 1968 for allegedly slaying an executive of the company, his wife and their two children in Shizuoka Prefecture.

Five pieces of bloodstained clothing, including a shirt, were found at the company’s plant more than a year later, and became decisive evidence at his trial. But the Shizuoka District Court decided to reopen the case, judging based on DNA tests of the bloodstains that the clothing was not Hakamada’s and had not been worn by the culprit at the time of the murder.

The photographs were reportedly taken soon after the bloodstained clothes were discovered inside one of tanks used for soybean fermentation, 14 months after the slayings.

The Shizuoka District Court’s decision suggested the evidence could have been fabricated by investigating officers, as the color of the clothes did not look like they had been soaked in miso paste for over a year.

“The negatives may be crucial in judging whether the evidence has been tainted,” one of Hakamada’s attorneys said.

According to the lawyers, as many as 111 negatives have been found and some of them have already been analyzed by the prosecution.

“The evidence was intentionally concealed and we’re not going to leave it like this,” Nishijima said, adding that the information was discovered in a statement that prosecutors issued on July 17.

The statement said police were in possession of the negatives and that prosecutors found them after the Shizuoka District Court reopened the case, which led to Hakamada’s release.

During the first meeting held between Hakamada’s lawyers, prosecutors and the court on Tuesday at the Tokyo High Court to review his conviction and sentence, the prosecution issued an apology for failing to disclose the evidence, saying they will provide further explanation in a written statement.

“We don’t know what else beside the five pieces of clothing we may find in the photographs, but we believe that some of the photographs have probably never been disclosed,” Hakamada’s attorneys said during the press conference.

The next meeting between the prosecutors, Hakamada’s lawyers and the court is scheduled for Oct. 23. His lawyers said they plan to respond to the prosecution’s statements by the end of October.

Presiding Judge Takaaki Oshima has not specified when the court will issue a final decision.

New Developments in Willingham Case, Ten Years After Execution

The Innocence Project has asked the State Bar of Texas to investigate former Navarro County prosecutor John Jackson relating to the arson case of Todd Willingham. Convicted of setting a fire on Dec. 23, 1991, that resulted in the death of his three young children — Amber, 2, and twins Karmon and Kameron, 1 — Willingham was executed on February 17, 2004.

Expert forensic testimony provided at the Willingham trial that equated burn patterns to the use of accelerants has been debunked by contemporary forensic science. Now, an article by Maurice Possley for The Marshall Project published in The Washington Post, details new evidence that undermines the second significant evidence that supported the conviction of Willingham, testimony from a jailhouse informant. Continue reading

Wednesday’s Quick Clicks…

Dredging the Prosecutorial Muck in Orange County

From the OC Weekly:

Superior Court Judge Thomas M. Goethals, is set to issue an Aug. 4 ruling about whether prosecutors in the Orange County (CA) district attorney’s office (OCDA) and local law enforcement, including OCSD (Orange County Sheriff’s Department) deputies, cheated in hopes of securing the death penalty for Scott Dekraai, the shooter in the 2011 Seal Beach salon massacre — and, if so, what penalties should be imposed.

This is subsequent to a three-justice panel at the California Court of Appeals based in Santa Ana observing that jail deputies at the Orange County Sheriff’s Department (OCSD) “engaged in abhorrent conduct and were derelict in their duties.”  That is:  committing perjury; doctoring logs; unnecessarily firing weapons at inmates sitting on toilets; ignoring medical emergencies; bolstering the power of incarcerated organized-crime bosses; encouraging inmate-on-inmate violence; and spending work hours running private businesses, sleeping, surfing the Internet, watching TV or texting love interests.

Read the OC Weekly story here.

Irish Court of Criminal Appeal declares that Martin Conmey’s conviction was miscarriage of justice

Today, the Irish Court of Criminal Appeal declared that the 1972 conviction of Martin Conmey for manslaughter was a miscarriage of justice. Conmey had been acquitted in 2010 but has served three years in jail. Read more about this case in the Irish Times’ write-up here. The Irish Times reports that the Court’s miscarriage of justice decision was based on the fact that Conmey had been convicted for his involvement in a joint enterprise, but there was no incriminating evidence against him about this. It found that three original statements of other parties “were suppressed by a person unknown, but connected with the prosecution”. Conmey’s lawyers will be lodging a claim for compensation.