Category Archives: Reforming/Improving the system

25th Anniversary of First DNA Exoneration in the U.S.

Last week marked the 25th anniversary of the first DNA exoneration in the U.S.  Professor Daniel Medwed reflects:

Twenty-five years ago today, an Illinois court overturned Gary Dotson’s conviction for rape and aggravated kidnapping after DNA tests performed on the biological evidence in the original rape kit excluded him as the perpetrator. This was the first exoneration of an innocent prisoner in this country based on post-conviction DNA testing, and it was not the last. According to data compiled by the Innocence Project in New York City, post-conviction DNA evidence has since yielded 316 other exonerations in the United States.  

Relatively simple fixes can decrease the risk of error in a criminal case….Many states have yet to install these reforms.

What have we learned from these DNA exonerations? Scholars have examined these cases in search of what went wrong. Among the chief contributors to the conviction of an innocent defendant are: eyewitness misidentifications; false confessions; poor decision-making by police and prosecutors; ineffective assistance of defense counsel; and the use of dubious forensic science. Relatively simple fixes can decrease the risk of error in a criminal case. These include: altering the manner in which eyewitness identifications occur; videotaping police interrogations; and asking prosecutors to use checklists to ensure they comply with their constitutional obligations. Many states have yet to install these reforms.

Beyond DNA exonerations, there is the issue of wrongful convictions that cannot be overturned with DNA testing. Biological evidence such as blood, saliva, skin cells and semen is found in only an estimated 10 to 20 percent of criminal cases. What’s more, this evidence is occasionally lost, destroyed or degraded.

Even when biological evidence is available, prosecutors and other law enforcement officials are not always forthcoming in disclosing it to the defense. Add to this the hurdle of testing the evidence in compliance with legal requirements, and the challenge of proving a wrongful conviction using DNA technology is even greater.

For this reason, DNA testing has not and cannot solve the problem of wrongful convictions.  The same factors that led to the initial miscarriages of justice in the DNA exonerations appear in cases without any available biological evidence. Absent the authority of science, it is exceedingly difficult to overturn a wrongful conviction in these so-called non-DNA cases. Attorneys litigating them must often rely on subjective evidence of innocence. In doing so, they tend to encounter strict time limits, cumbersome burdens of proof and the pervasive skepticism of prosecutors and judges.

Absent the authority of science, it is exceedingly difficult to overturn a wrongful conviction in these so-called non-DNA cases.

The next phase of work in this field, then, is to implement lasting reforms to bolster accuracy in all criminal cases and to make it easier to present non-DNA innocence claims in post-conviction proceedings.

It may be fair to say that the Dotson exoneration a quarter century ago helped launch a revolution in criminal law: a legal, political and social campaign to rectify injustices that some have labeled a civil rights movement for this century. This revolution is far from over.

Sex Offender Registries (SOR’s): TIME-FOR-A-CHANGE

registry swamp

Editor’s Note:  Although this article is clearly editorial in nature, it contains a substantial amount of fact and data that have direct bearing on the subject.  It’s also a long article, and I hope you’ll have the patience to read it through to the end.

The article is in five sections:

The History of Sex Offender Registries in the US

Sex Offender Registries are Manifestly Unjust

Sex Offender Registries Don’t Work

Sex Offender Registries Cost a Lot of Money

Conclusion

Continue reading

Militarized Police

The militarization of police scares the hell out of me.

How about you?

This from the NY Times: Get the Military Off of Main Street.

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.

A Blog on Junk Science Forensics – At Last!

cropped-bowers_capitol-small1

Here at the WCB, we’ve posted many, many articles dealing with the highly questionable scientific validity of most all forensic disciplines.  I’m very happy to report that there is now a blog dedicated to that issue.

Dr. Michael Bowers is a practicing dentist and forensic odontologist in Ventura, CA, and a long time forensic consultant in the US and international court systems. His newest book, “Forensic Testimony, Science, Law and Expert Evidence” with Elsevier/Academic Press is available on Amazon.

Dr. Bowers has some refreshing and insightful views on the validity of forensics, and maintains a blog addressing the “junk science” that so many in the justice system refer to as “forensic science.”  Please visit that blog here: Forensics in Focus.

[Editor's note:  I, personally, refuse to call them forensic sciences.  They are not sciences.  Technologies? Disciplines?  Perhaps, but they're not sciences.]

PS:  I have reviewed Dr. Bowers’ new book Forensic Testimony – Science, Law, and Expert Evidence, and you can read that review here.  I highly recommend it.

Robbery, Kidnapping, Extortion — and This Is the Police!

What can I say?

See the Philadelphia Inquirer story here.

Fire Science and SBS? Yes – The Child Abuse Experts Can Learn From This

Sue Luttner, editor of the blog OnSBS, has posted an article that points out the parallels between “old” and discredited arson science and the situation with child abuse experts who are stuck in a paradigm paralysis regarding shaken baby syndrome (SBS).

‘Hats off’ to Sue, because the parallels had never struck me before, but they are incredibly close.

Please see Sue’s article here.

Botched Execution in Arizona

Joseph Wood was put to death by the state of Arizona yesterday.

“It took one hour and 57 minutes for the execution to be completed, and Wood was gasping for more than an hour and a half of that time.”

See the AOL story here.

New Scholarship Spotlight: In Defense of American Criminal Justice

The Honorable J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit has published the above-titled article in the Vanderbilt Law Review.  It argues that the system is not nearly as broken as many critics allege, some convictions of innocents is part of a necessary trade-off, and that the reforms pushed by the Innocence Movement often go to far.

Have a read here.

17, on Death Row …. and Innocent

Shareef Cousin was once the youngest person in the US on death row.

His case is yet another example of how mistaken (or false) eyewitness testimony can override an airtight alibi.  And this one was also compounded by a Brady violation regarding the eyesight of the witness, a lying detective, and coerced snitch testimony.

Cousin has recently authored a CNN article decrying the death penalty.

This quote from the article:  “It is hard to argue that the death penalty is applied fairly. Take it from me, someone who lived alongside guys on death row: The system does not identify and sentence “the worst of the worst” to death — just the most powerless.”

You can read the CNN article here.

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.”

New Scholarship Spotlight: A Systems Approach to Error Reduction in Criminal Justice

John Hollway, for the Quattrone Center for the Fair Administration of Justice, has posted the above-titled article on SSRN.  Download here.  The abstract states:

The “systems approach” has been used, improved, and refined over time to improve safety and reduce errors in a variety of complex, high-risk industries, including health care, aviation, and manufacturing, among others. Such an approach targets the system for improvement rather than specific individuals within the system, and seeks to provide an environment that maximizes each participant’s ability to act safely and in a way that achieves the goals of the system. It prizes a non-punitive culture of disclosure to identify errors, gathers and applies data to understand the causes of the error, and tests systems changes to prevent future errors. This focus on system improvement, rather than on individual punishment or blame, unites all participants around objective criteria and allows each participant to do his or her job more efficiently, accurately and safely.

While the challenge of preventing errors in well-meaning complex systems is neither new nor unique to criminal law, the need for error reduction in the criminal justice system is clear. This document advocates for the application of a systems approach to reducing errors in the criminal justice system, generating reform in a fashion that will unify well-intentioned but professionally adversarial participants around an objective shared by all: the integrity of investigations, prosecutions, and adjudications, and the elimination of known and currently unknown errors that undermine the fair administration of justice. It then sets forth requirements for the successful application of a systems approach, and a model for interaction among researchers, reformers, and practitioners in the criminal justice system – including prosecutors, defense attorneys, judges, and law enforcement officials – that will allow for more rigorous analyses of the criminal justice system and the design, testing, dissemination and implementation of successful best practices that will improve the fair administration of justice.

New Treatise on SBS (Shaken Baby Syndrome)

Sue Luttner maintains the blog OnSBS.  She is a long time observer and reporter of the state of SBS in the justice system.  We  have reblogged many of her articles here on the WCB.

Ms. Luttner has recently had published a definitive, scholarly work that traces the origins of SBS, and explains why the hypothesis of SBS is scientifically questionable.

If you are student of SBS at all, this is a must read.

For me, the most cogent point the paper makes is that SBS evolved into being through massively flawed inductive reasoning, driven by statistically invalid anecdotal observations of extremely small populations.  SBS is just a collection of guesses and speculations canonized into a “diagnosis,” which Prof. Deborah Tuerkheimer has so aptly stated is a “medical diagnosis of murder.”

Access the paper here.

 

Women’s Criminal Justice Network

I just became aware of the Women’s Criminal justice network.

Check it out.  Here’s a link WCJN.

The home page features an article on the Tammy Traxtle case.  It’s a glaring example of how plea deals are used by prosectors to make their cases, and the crushing punishment you can receive if you don’t “take the deal.”

This quote from the article:   “The district attorney offered Tammy a deal. “Just say you saw Jeff shoot Carlos, and you’ll get 18 months. Take the plea, do the time, and soon you will be back to work and reunited with your children. It is a short sentence for a horrible crime. Cross us, go to court, and you will face the consequences. We will ask for life, you will do 25, and that is years, not months!””

 

Albuquerque Police Out-Of-Control

We have posted often before about issues of police overreach and misconduct – phony lineups, ignoring evidence, fabricating evidence, coercing confessions, lying on the stand, and more.  However it seems the Albuquerque, New Mexico police department has set a new standard for police overreach.

Albuquerque has an officer-involved shooting rate 4 times that of Chicago and 8 times that of New York.  The Albuquerque police have killed 26 people in just the last four years, and the city has paid out $30 million in civil judgements – so far – as a result of those killings.  However, in the last 30 years, not a single Albuquerque officer has even been charged, much less convicted, of using excessive force.

Watch the CNN video here, which shows the murder of a homeless man by the Albuquerque police.  Warning – this will make you angry.

The US Justice Department has been investigating, and the Albuquerque police department will soon be operating under consent decree with the USDOJ.

Book Review – Forensic Testimony; Science, Law and Expert Evidence

 

Bowers book

There has been a recent addition to the literature regarding the validity of forensic evidence and the power that expert testimony has in court.  The book Forensic Testimony; Science, Law and Expert Evidence is written by C. Michael Bowers and published by Elsevier Academic Press.

Professor Jane Taylor, University of Newcastle, New South Wales, Australia has reviewed the book, and you can read that review here.

I have had the opportunity to personally review this book, and can say without question that it is a must read for anyone who deals with the validity (or lack of) and the power of forensic evidence and expert testimony in a trial.

The book really resonates with me, because it emphasizes the problems with the “uniqueness principle” and the use of flawed inductive reasoning in the development of the forensic disciplines (I refuse to call them “sciences.”) that I have been preaching about for years.

I most highly recommend it.  The book is available on Amazon here.

The chapter headings:

Chapter 1     The History of Experts in English Common Law, with Practice Advice for Beginning Experts

Chapter 2     Science and Forensic Science

Chapter 3     The Admissibility of Forensic Expert Evidence

Chapter 4     Professional Forensic Expert Practice

Chapter 5     Managing Your Forensic Case From Beginning to End

Chapter 6     Character Traits of Expert Witnesses: The Good and the Bad

Chapter 7     Voir Dire and Direct Examination of the Expert

Chapter 8     Cross Examination: The Expert’s Challenge and the Lawyer’s Strategies

Chapter 9     Uniqueness and Individualization in Forensic Science

Chapter 10   Forensic Failures

Chapter 11   Forensic Expert Ethics

Chapter 12   The Unparalleled Power of Expert Testimony

 

 

Thursday’s Quick Clicks…

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

Flawed Forensics – Part of a TV Series from Al Jazeera America Examining the US Justice System

Al Jazeera America is running an eight part series called The System which examines the state of the justice system in the US.  This coming Sunday, June 1, the program will cover flawed forensics, and will highlight the case of Mississippi death row inmate Willie Manning.  Manning is a victim of the now-acknowledged faulty hair analysis practices of the FBI.

There is a zip code box on the Al Jazeera America home page to help you find their programming in your area:

AlJazeera3

Here is the schedule for the entire series, The System:

Episode 1: False Confessions, Sunday May 18th at 9E/6P

Episode 2: Mandatory Sentencing, Sunday May 25th at 9E/6P

Episode 3: Flawed Forensics, Sunday June 1st at 9E/6P

Episode 4: Eyewitness Identification, Sunday June 8th at 9E/6P

Episode 5: Parole: High Risks, High Stakes, Sunday June 15th at 9E/6P

Episode 6: Juvenile Justice, Sunday June 22nd at 9E/6P

Episode 7: Geography of Punishment, Sunday June 29th at 9E/6P

Episode 8: Prosecutorial Misconduct, Sunday July 6th at 9E/6P
 

 

Wednesday’s Quick Clicks…