Category Archives: Reforming/Improving the system

Criminal Law 2.0, by The Hon. Alex Kozinski (Why the US Justice System Really Isn’t Just)

Alex Kozinski is a judge on the U.S. Ninth Circuit. He has recently authored an article for the Georgetown Law Journal, which he simply titles “Criminal Law 2.0.” It is a comprehensive review and critique of the flaws and shortcomings of the current US justice system. My opinion is that this article is a masterpiece, a classic. Here is an experienced, seasoned, knowledgable justice system “insider” who has “figured it out.” And not only has he figured it out, but he also has some very good ideas about fixing the problems, or at least some of them. You can see the full text here: Kozinski, Criminal Law 2. I strongly encourage reading the full article.

Here is a topical summary: (Please see the full article for Judge Kozinski’s discussion of each point.)

A. The myths that cause us to think that the justice system is fair and just, when it’s really not.

  1. Eyewitnesses are highly reliable.
  2. Fingerprint evidence is foolproof.
  3. Other types of forensic evidence are scientifically proven and therefore infallible.
  4. DNA evidence is infallible.
  5. Human memories are reliable.
  6. Confessions are infallible because innocent people never confess.
  7. Juries follow instructions.
  8. Prosecutors play fair.
  9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
  10. Police are objective in their investigations.
  11. Guilty pleas are conclusive proof of guilt.
  12. Long sentences deter crime.

B. Recommendations for reform – Juries

  1. Give jurors a written copy of the jury instructions.
  2. Allow jurors to take notes during trial and provide them with a full trial transcript.
  3. Allow jurors to discuss the case while the trial is ongoing.
  4. Allow jurors to ask questions during the trial.
  5. Tell jurors up-front what’s at stake in the case.
  6. Give jurors a say in sentencing.

C. Recommendations for reform – Prosecutors

  1. Require open file discovery.
  2. Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations.
  3. Adopt standardized, rigorous procedures for eyewitness identification.
  4. Video record all suspect interrogations.
  5. Impose strict limits on the use of jailhouse informants.
  6. Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process.
  7. Keep adding conviction integrity units.
  8. Establish independent Prosecutorial Integrity Units.

D. Recommendations for reform – Judges

  1. Enter Brady compliance orders in every criminal case.
  2. Engage in a Brady colloquy.
  3. Adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense.
  4. Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.
  5. When prosecutors misbehave, don’t keep it a secret.

E. Recommendations for reform – General

  1. Abandon judicial elections.
  2. Abrogate absolute prosecutorial immunity.
  3. Repeal AEDPA § 2254(d). (Antiterrorism and Effective Death Penalty Act)
  4. Treat prosecutorial misconduct as a civil rights violation.
  5. Give criminal defendants the choice of a jury or bench trial.
  6. Conduct in depth studies of exonerations.
  7. Repeal three felonies a day for three years. (Refers to the fact that there are too many vague, overlapping laws on the books.)

I would add two more to the General category:

•  Have all trial counsel, prosecution and defense, sworn in at the beginning of every trial.

•  Abandon political election of prosecutors.

Documentary on Scientifically Flawed FBI Hair Comparison Evidence

We’ve reported here before about the fact that FBI agents have been giving scientifically unsupportable testimony regarding hair comparison evidence for decades. Please see  Hair Analysis Evidence About to Join CBLA as “Junk Science.”

This Monday, August 17th at 10pm ET/7p PT, Al Jazeera’s Emmy Award-winning “Fault Lines” investigates how the FBI used the flawed science of microscopic hair analysis to help convict thousands of criminal defendants.

In this new episode, “Under the Microscope: The FBI Hair Cases,” Fault Lines correspondent Josh Rushing and team travel to Savannah, Georgia to meet Joseph Sledge. In 1978, Sledge was convicted of murder, partly based on FBI testimony that his hair was “microscopically alike in all respects” to hairs found at the crime scene. He was released this January, after serving 37 years in prison, when DNA testing proved the hairs used at trial were not his.

As “Fault Lines” reveals, Sledge is among at least 74 Americans who were exonerated after being convicted of a crime involving the forensic science of microscopic hair analysis. “There was no physical evidence tying Joseph to the crime, and the microscopic hair comparison was the closest they could come,” attorney Christine Mumma of the North Carolina Center on Actual Innocence said of Sledge’s case.

Before the advent of DNA testing, the FBI used the technique of hair analysis for decades. Al Jazeera America interviewed former FBI hair examiner Morris Samuel Clark, who said he testified hundreds of times in court about hair evidence, and that FBI microscopic hair comparisons were based on “16 different characteristics.”  However, with no database with which to compare hairs, Clark conceded that the FBI could not account for how hair characteristics are distributed in the general population.

“The hairs on your head are quite different depending on where they’re selected,” said Dr. Terry Melton, founder of Mitotyping Technologies, a Pennsylvania-based DNA lab. “Microscopy is a very subjective science, and DNA is exactly the opposite.”

In 2012, Dr. Melton’s DNA lab helped overturn convictions for two Washington, D.C.-area men: Kirk Odom, arrested for rape when he was 18 years old, and Santae Tribble, arrested for murder when he was 17.  Sandra Levick, the public defender who represented both Odom and Tribble in their appeals, said, “We had all 13 of the hairs that the FBI had examined [in Tribble’s case] sent off [for DNA testing.]” DNA-testing revealed that one of the hairs used at trial belonged to a dog.

In 2012, these high-profile exonerations finally compelled the Department of Justice to conduct a thorough review. In cases reviewed thus far, they have found that 26 out of 28 FBI examiners made false claims at trial. “We can now say, based on a statistically sizable sample of cases they have reviewed, [the FBI] were wrong 95% of the time,” said David Colapinto, an attorney at the National Whistleblower’s Center.

As of April 2015, the Department of Justice says it has reviewed about 1,800 cases – but in 40% of them, it closed the review due to lack of documentation. Officials from Justice and FBI declined to speak on camera for “Fault Lines” but publicly, they say they will notify defense counsel in cases they have reviewed, while declining to release the names of the defendants to the public. But with at least 14 defendants in question already executed or deceased of old age, is justice working too slowly?

Fault Lines’ “Under the Microscope: the FBI Hair Cases” premieres on Al Jazeera America on Monday, August 17th at 10 p.m. Eastern time/7 p.m. Pacific.

Al Jazeera America can be seen around the U.S. on Comcast Channel 107, Time Warner Cable, Dish Channel 216, DirecTV Channel 347, Verizon Fios Channel 614 and AT&T U-Verse Channel 1219.

When Innocence Is No Defense

The ancient Greek playwright, Euripides, once wrote, “Ours is a world in which justice is accidental, and innocence no protection.”

Interestingly, there is an op-ed piece in the NY Times today with the title “When Innocence Is No Defense.”

This quote from the article: “What is most troubling (about the Georgia Supreme Court’s decision) is that the issue of innocence becomes irrelevant if there has been a failure of due diligence. In effect, the ruling elevates finality over justice to the point that an innocent person can be imprisoned, even executed, because of errors made by his lawyer. Absent a constitutional safety net, an innocent person convicted after a procedurally adequate trial is out of luck.” (Highlighting is mine.)

See the NY Times op-ed piece by Julie Seaman here.

The Sex Offender Registry Strikes Again

We’ve posted  here before about the insanity and injustice of the sex offender registries. Please see Sex Offender Registries – TIME-FOR-A-CHANGE.

A recent CNN article captures the situation very well. This quote from the article by a judge familiar with the case: “If we caught every teenager that violated our current law,” says former Judge William Buhl, “we’d lock up 30 or 40 percent of the high school. We’re kidding ourselves.”

See the CNN story – “How a dating app hookup landed a teen on the sex offender registry” – here.

 

“Toe Tag Parole” – a Documentary About Extreme Prison Sentences in the US

TOE TAG PAROLE: TO LIVE AND DIE ON YARD A

CAPTURING THE REALITY OF AMERICA’S EXTREME SENTENCING POLICIES AT A CALIFORNIA MAXIMUM SECURITY PRISON, DEBUTS   AUG. 3 ON HBO

More Than 50,000 Americans, Consisting of Men, Women And Juveniles, Are Currently Sentenced To Life Without The Possibility Of Parole – America is the most punitive nation in the world, handing out historically harsh sentences that largely dispense with the concept of rehabilitation.

Alan and Susan Raymond (Oscar® and Emmy® winners for HBO’s “I Am a Promise:The Children of Stanton Elementary School”) explore the reality of “the other death penalty” in TOE TAG PAROLE: TO LIVE AND DIE ON YARD A, debuting MONDAY, AUG. 3 (9:00-10:30 p.m. ET/PT), exclusively on HBO.

Other HBO playdates: Aug. 3 (5:05 a.m.), 6 (4:15 p.m., 12:30 a.m.), 7 (8:00 a.m.), 9 (3:00 p.m.) 11 (3:00 p.m.) and 15 (10:00 a.m.)

            HBO2 playdates: Aug. 12 (8:00 p.m.), 20 (12:30 a.m.), 23 (9:05 a.m.) and 25 (12:45 p.m.)

Featuring exclusive, unprecedented access, TOE TAG PAROLE: TO LIVE AND DIE ON YARD A was shot entirely at California State Prison, Los Angeles County, a maximum-security facility in the Mojave Desert.

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A Broken Justice System – Cases in Point – Part 1 – The Case of Ryan Madden

From time to time, I become aware of cases that are particularly good examples of the flaws, problems, shortcomings, and actual injustices of our so-called justice system that I have been writing about here for the last 3 1/2 years. I thought it would be good to highlight some of them for the blog.

As a backdrop to this series, I’d like to refer you to The Blaze article The American Nightmare: The Tyranny of the Criminal Justice System by John Whitehead. Please also see our previous post Why I Think the US Justice System is Broken – and Why It’s Not Getting Fixed.

Part 1” is the case of Ryan Madden in California.  Here is what I think this case exemplifies:

1) Bad defense lawyering leading to a wrongful conviction and exclusion from the appeals process.

2) The fact that you can pay huge sums of money to a lawyer who screws up your case, and you still get wrongfully convicted, and …. the lawyer keeps the money.

3) The existence of arbitrary “time bars” in the law that serve only to value legal process and finality of judgement over true justice.

4) The fact that so-called “conviction integrity units” are, in my opinion, still under the complete and arbitrary control of the prosecutor, and are not a reliable remedy for wrongful convictions. (Please see our previous post, Conviction Integrity Units – A Skeptic’s Perspective.)

Ryan’s father, Michael Madden, posted a comment regarding his son’s case to the WCB article Equal Justice Under Law … Well … Just How Much Justice Can You Afford?  His comment follows (with his permission), and is self-explanatory.

_______________________________________________________

My son is currently serving 15 years for two armed robberies he did not commit. Shoddy and lazy lawyering led to his conviction through a myriad of miscalculations and mistakes, including failing to have ATM pictures of the actual suspect photographically enhanced.

During the appellate process, his once highly regarded attorney submitted his appeal 35 days too late, leading to the mounds of exculpatory evidence gleaned postconviction to be ADEPA time barred. He stands a very good chance under this system of NEVER having ANY of the exculpatory evidence considered by the courts… Including an actual confession letter written by the real perpetrator.

Even though his attorney miscalculated the allowable time frame in which to submit his appeal, my son is paying the price for his mistake, while the attorney suffers no consequences AND keeps the $85,000 fee.

In a last-ditch effort to have someone – ANYONE – examine the evidence, his fate now rests in the hands of the Ventura County Convictions Integrity Unit. Even though they are playing with taxpayers money, it’s amazing how frugal they become when it comes to spending it on possibly overturning a conviction they received nine years ago.

How did this “justice” system ever arrive at a place in which the timeliness of an appeal involving actual innocence trumps actual innocence?

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Michael maintains a website about his son’s case: innocentinmate.com

“Part 2,” and more, to come in future.

Why so Many “Confessions” in Shaken Baby Syndrome Cases?

In suspected SBS cases, the child abuse pediatricians (CAP’s) and the police are perfectly willing to coerce a confession out of you, and they have circumstances on their side, because you are at your most vulnerable. You are terribly concerned about the condition of your child, or worse yet, your child has just died. (See our previous post on child abuse pediatricians here: The Child Abuse Pediatrician (CAP) – Just Another Term for Medical “Cop”)

We’ve posted about SBS “confessions” before. See Shaken Baby Syndrome (SBS) – A CBS Report: Blaming Melissa for the coerced “confession” of Melissa Calusinski. See Scenes of a Crime – A Documentary of a False Confession and Blatantly Coerced Confession Results in Conviction Reversal for the coerced “confession” of Adrian Thomas.

Washtenaw Watchdogs (Washtenaw County, MI) has just published an investigative report article on their website dealing with this very issue. It’s very powerful. See it HERE.

Quote of the Day – About Prosecutors

From Cynthia Roseberry:

“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job – our sworn duty – as criminal defense lawyers, to protect our clients from those people.”

Cynthia Roseberry

Of course, you know who the “people” are that she’s taking about.

 

Equal Justice Under Law? . . . Well . . . Just How Much Justice Can You Afford?

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The words chiseled in stone above the entrance to the U.S. Supreme Court building say, “Equal Justice Under Law.” A truly noble philosophy – in theory.

But in actual fact, there’s nothing “equal” about justice in this country, and we’re not talking about racial, ethnic, religious, or gender issues here; although they certainly are a factor.  It’s a matter of just plain old “dollars and cents,” coupled with the statistical distribution of human capabilities. That is, the better the lawyer, the more money he/she can, and will, charge. This should not be surprising. It’s Economics 101 – supply and demand – the very bedrock foundation of capitalism. The better lawyers will be in higher demand – for those that can pay for them – and will consequently charge more money for their services. Lawyers are just like any other profession – doctor, mechanic, engineer, carpenter, tailor, chef, etc. – there’s a range of individual capabilities from “good” to “bad,” and the “good” one’s cost more money.  There’s an old saying in the legal business: “How much justice can you afford?” There’s no secret – the more you can pay for an attorney, the more effective your defense will be; and – if you’re actually innocent – the better your chances of a just outcome.

The law has become so incredibly vast, intricate, and complex, it’s no wonder that there have to be legal “specialties” – tax law, corporate law, patent law, estate law, non-profit law, contract law, political law, insurance law, criminal law, and on and on and on. It’s so complicated, even the lawyers can get it wrong. But the better lawyers are better at getting it right and in presenting an effective and successful case.

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Judge Kozinski: Time to Rein In Prosecutors

Alex Kozinski is a judge of the Ninth US Circuit Court of Appeals. He has previously been outspoken regarding prosecutorial misconduct, and has recently authored an article for the Georgetown Law Review on the subject.

See the Wall Street Journal Law Blog article here. In the WSJ article, you’ll find a link to Judge Kozinski’s full article, which is lengthy, but the WSJ article provides a reasonable summary.

 

Sharing Views on Prosecutorial Reform

If you’ve read much of my stuff on this blog, you must know that prosecutors, as a group, are not my favorite people. I am a person driven by logic, fairness, reason, and justice. Given their position, I would expect prosecutors to be the same. After all, they’re supposed to be “ministers of justice,” but my observation is that it’s so often not the case. I will grant that because of the work that I do, I routinely have exposure to prosecutorial behavior that is less than ethical, is not in the interest of true justice, and is sometimes just criminal. And because they’re “prosecutors,” they get away with it. I do not believe that prosecutors are inherently evil and unethical people; but they are human beings, subject to all the same human frailties that we all are. In fact, I believe their behavior is exactly what you would expect, given the incentives built into the system and the power with which they are endowed. What the actual extent of this problem is I’m sure we’ll never know, but I do know that I see it routinely, and I can only report what I observe.

As background, it would be helpful for you to see our earlier post regarding prosecutorial misconduct from two years ago: Prosecutorial Misconduct – What’s to be Done? A Call to Action. And as an update to this article, the National Registry of Exonerations now totals 1,618 wrongful convictions overturned as of this writing, and 46% of those had “official misconduct” as a contributing factor.

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Wednesday’s Quick Clicks…

Prosecutors, Charge Stacking, and Plea Deals

We’ve posted several times on the blog about how prosecutors will “stack charges” against a defendant, thus building a very long potential prison sentence if convicted, and then approach the defendant with a “plea deal” that would result in a guaranteed, substantially reduced charge and sentence if the defendant agrees to plead guilty to the reduced offense. If the defendant takes the deal, the prosecutor doesn’t have to take the case to trial, and possibly not even to a grand jury, both of which are a lot of work and require a lot of time on the part of the prosecutor. This has become absolutely standard practice. The prosecutor will “stack” charges to build such a scary potential sentence, that even actually innocent people will be intimidated into pleading guilty, rather than face what’s called the “trial penalty ” – that very scary long sentence if they should somehow be convicted at trial. Not surprisingly, the nature of the deal offered by the prosecutor will be driven by how strong a case he/she thinks they would have in court – the weaker the case, the better the deal.

Let me also add that the prosecutor has no problem assembling a very long list of charges against you. The penal code has become so vast, and there are so many laws, that there’s a law against practically everything. I suggest that most people are not even aware they’re breaking a law when they do it, because they don’t know the law exists. I swear; I think they could charge you with something for walking down the sidewalk whistling a tune while wearing a blue shirt.

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Vietnam: Government debates problem of wrongful convictions

In yet another encouraging sign the the ‘problem’ of miscarriages of justice is starting to be taken more seriously globally – the National Assembly of Vietnam has this week been debating the issue of wrongful convictions. In a courageous move, auntitled standing committee looking at wrongful convictions and compensation, admitted that while most investigations and prosecutions were carried out in adherence with rules and upheld human rights, there were some ‘weaknesses and shortcomings’. The report states that between October 1, 2011 to September 30, 2014, there were 71 wrongful convictions – a rate of 0.02 per cent. Although a ‘small’ number, they admitted: “Some serious cases created extreme anxiety among the public, eroding many people’s confidence in our justice system and damaging the prestige of our law enforcement agencies.”. However, with 80% of trials in Vietnam taking place with NO defence counsel, and the country still reportedly ‘trying hard’ to eradicate torture and coerced confessions, it may be questionable how the figure of 71 was reached… and it’s accuracy. Despite this scepticism, it is still heartening that such reports are being published. Read more here…

Miscarriages of justice in Vietnam are serious: legislators

NA debates wrongful convictions

 

“Anti-Snitch” Bill in North Carolina ‘Dies’ in the Legislature

Making deals with snitches — just one of the more loathsome practices of prosecutors, and it happens all the time. Here’s how it works. A prison inmate (snitch) who has contact in prison with the defendant in a case comes forward, and claims that the defendant confessed to him in prison, or that the defendant bragged about the crime, or said things that implicated himself in the crime. In “exchange” for his testimony against the defendant the snitch is granted favorable treatment by the prosecutor – reduced sentence, reduced charges, early release, etc. Snitches can also be people who are not in prison, and get paid money for their testimony, or have pending charges dropped. Snitch testimony is often totally fabricated, and the snitch is lying just to get the deal from the prosecutor or to get the money. Snitches will read newspaper reports of crimes to learn just enough detail about a crime to give some credibility to their fake claims about what the defendant said to them. And when prosecutors put snitches on the witness stand, you can’t tell me they don’t know the testimony is bogus. However, it’s not uncommon for snitch testimony to be the deciding factor in a conviction.

North Carolina has been among the leaders in addressing the problem of wrongful convictions, including establishing the first state innocence commission, the North Carolina Innocence Inquiry Commission, in 2002. And recently in North Carolina, the issue of perjurious snitch testimony has bubbled to the surface. A bill under consideration in the legislature would bar a conviction based solely upon incentivized (snitch) testimony. However, that bill has now essentially died in the legislature after intense lobbying from the North Carolina Conference of District Attorneys.

This from the publication INDY Week: “Supporters called it one of the strongest bills in the country that would protect criminal defendants from lying jailhouse snitches. But now, the I. Beverly Lake, Jr., Fair Trial Act is on life support, blocked by N.C. House leadership after pressure from the state’s Conference of District Attorneys.”

See the INDY Week story here.

Given North Carolina’s heretofore forward thinking on wrongful convictions, I am dismayed by this; but, it’s just yet another obstacle to overcome – so upward and onward. The fact that this bill has even been under consideration is a source of encouragement, because it means that some legislators actually understand some of the problems.

 

FBI crime lab admits to errors in DNA profiles

There are lies, damn lies and statistics.

The Washington Post reports that the FBI has notified local crime labs that it has discovered errors in data used by forensic scientists in thousands of cases to calculate the chances that DNA found at a crime scene matches a particular person.

The FBI is downplaying the significance of the problem, but a scientist who identified errors 10 years ago in the DNA profiles the FBI analyzed to generate the population statistics data called the consequences of the disclosure appalling and said they could have led to wrongful convictions. You can read the story here.

Judge Disqualifies All 250 Orange County, CA Prosecutors !

In Orange County, CA, a case, in which the justice system should have been at its best, has deteriorated into a revalation of incompetence, corruption and perjury involving police, sheriff’s deputies, county counsel, and prosecutors. It has also come out that this systemic corruption, involving rights violations, “professional” jailhouse snitches, and secret police files, has been going on for decades.

As a result of these disclosures, the judge in the murder trial of the worst mass murderer in Orange County history has disqualified all 250 Orange County prosecutors from the case.

See the Daily Kos story here.

And see a supporting story from the OC Weekly here.

New Doubts are Cast on Shaken-Baby Diagnoses

Here is a recent article from the Boston Globe on developments in the diagnosis of Shaken Baby Syndrome (SBS/AHT), and their relation to the justice system. See the article here.

One more step on the road to scientific truth, but it’s going to be a long journey. To paraphrase Nobel physics laureate Max Planck, “Science advances one funeral at a time.”

These Are the Wrongful Conviction Cases That Haunt Me

I’ve been doing “innocence work” for seven years now.  So …. just what is it that I do? I am Science & Technology Advisor to the Ohio Innocence Project at the University of Cincinnati College of Law and to the Duke Law Wrongful Convictions Clinic at Duke University. This means I advise on cases that include factors involving science and/or technology – usually forensics. I will also advise any innocence organization or agent that requests my input, and I do this pro bono. I do some other stuff too, like write for this blog, but those are the roles in which I get involved in case work.

During this seven year period, I’ve had personal involvement – meaning I’ve actually done work – in 63 cases in eight states and two foreign countries; and have had exposure to the details of probably 100 more cases on top of that. I’ve been privileged to be a small piece of the puzzle in five exonerations; and, in four cases, my work has contributed to confirming that the defendant was actually guilty. We consider confirming guilt to be a good outcome, because it means that justice has been properly served. We’re not trying to get everybody out of prison – only the people who are actually innocent.

We relish talking about the successes, the exonerations, but nobody ever hears about the failures. I count a failed case as one in which, based upon careful and intensive study of all the facts, testimony and evidence, we (I) are absolutely confident that the defendant is actually innocent; but our efforts to exonerate have not succeeded, and there’s really nothing more we can do. Sadly, the failures occur much, much more frequently than the successes. There are no good data for this, but in my experience, an exoneration takes years of time (average about 7), thousands of hours of total effort by a great many people, and, in some cases, thousands of dollars. And the failures can take just as much as the successes, if not more.

Most of the cases I’ve worked remain “open,” at least technically, but there are some for which we have seemingly come to the end of the legal road, and there’s little, if anything, that can still be done. There are five of these cases, in particular, that keep me awake at night, because I get so outraged and frustrated by the injustice. I thought I would share them with you, so you might get some idea of what the people doing innocence work have to deal with on a daily basis. Since these cases are unresolved, I will not reveal any names, dates, or places, and will provide only sketchy details of the incidents involved, but you’ll get the idea.

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Exonerees Earn Law Degrees; Become Innocence Attorneys

Many exonerees, upon release from prison, undertake some form of innocence work. After all, being wrongfully convicted and incarcerated has to qualify as one of the most profoundly life-altering events a person can endure. So it’s not surprising that many dedicate the rest of their lives to trying to fix the broken system that wronged them so terribly.

There are even some who go on to earn a law degree, so they can confront the system in a personal and “head-on” way. Several of these “JD-carrying” exonerees were featured in the recent edition of the American Bar Association Journal.  See the article from the ABA Journal here.