Category Archives: Reforming/Improving the system

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…

More Mike Nifong Prosecutor Misconduct Exposed

Surely you remember Mike Nifong.  He’s the (former) Durham County North Carolina District Attorney who prosecuted the Duke lacrosse team rape case.  What a fiasco that was.  Nifong was ultimately disbarred and did jail time for his blatant misconduct as a prosecutor.  See previous WCB post here.

Well, to quote a recent Washington Post article by Radley Balko, “… prosecutorial misconduct is rarely a one-off phenomenon.”  And indeed, yet more egregious misconduct by Nifong has just been exposed as a result of the 1995 murder conviction of Darryl Howard being overturned for Nifong’s prosecutorial misconduct.

You can read Radley Balko’s Washington Post Story about it here.

(Thanks to Camille Tilley for passing this story along in a recent WCB comment.)

Challenges to ‘Shaken Baby’ Convictions Mounting

There is an excellent (and brief) article on the current state of post-conviction SBS challenges that appeared in the Wisconsin State Journal.

You can read that story here.

Thanks to Keith Findley, co-founder of the Wisconsin Innocence Project and current president of the National Innocence Network, for passing this along.

Acquittal in California SBS Case

There was an acquittal in an SBS case in California this past Wednesday.

Quentin Stone was found not guilty of inflicting abusive head trauma (the current “official” term for SBS) on his infant son, who, days before, had accidentally fallen off the bed.

Sue Luttner, in her blog OnSBS.com, has done an excellent job of summarizing the case, and you can read her post here.

DOJ Reverses No-Record Policy for Interrogations….

When I was a federal prosecutor, on one of my first days a lawyer came in with his client to proffer as a possible cooperator.  The lawyer asked if the interview could be recorded.  Since I was new, I asked my supervisor, who said, “No, we never record.” I asked why and was told, “The public wouldn’t understand how complex this is, and the things we have to do sometimes to get the truth.”  Anyway, that policy has now thankfully been reversed.

From the USA Today:

Since the FBI began under President Theodore Roosevelt in 1908, agents have not only shunned the use of tape recorders, they’ve beenprohibited by policy from making audio and video records of statements by criminal suspects without special approval.

Now, after more than a century, the U.S. Department of Justice has quietly reversed that directive by issuing orders May 12 that video recording is presumptively required for interrogations of suspects in custody, with some exceptions.

There was no news release or press conference to announce the radical shift. But a DOJ memorandum — obtained by The Arizona Republic — spells out the changes to begin July 11.

“This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA) the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody,” says the memo to all federal prosecutors and criminal chiefs from James M. Cole, deputy attorney general.

“This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,” such as in the questioning of witnesses.

An accompanying message from Monty Wilkinson, director of the Executive Office for United States Attorneys, says the change resulted from lengthy collaborative efforts among DOJ and law enforcement personnel. Media representatives at the Justice Department and FBI did not immediately respond to requests for a more detailed explanation.

Paul Charlton, the former U.S. Attorney for Arizona who was fired by President George W. Bush in part because he challenged the Justice Department’s no-taping policy, welcomed the turnaround.

“It’s a great day,” Charlton said. “Really extraordinary. It’s a step in the right direction for law enforcement.”

“Hallelujah!” agreed Steve Drizin, a clinical professor of law at the Northwestern University School of Law who focuses on false convictions and false confessions. “It’s been a long time coming.”

Nancy Savage, executive director at the Society of former Special Agents of the FBI, said there’s probably no unilateral view from field agents. Although tape recorders sometimes intimidate suspects, she added, the change was probably inevitable because juries have come to expect audio and video evidence.

“This is a radical departure,” Savage said. “They want to see it in living color. … I think it’s probably just a move forward.”

Attorneys, researchers and longtime critics of the old policy say reform brings federal agencies up to modern policing standards, and removes a stigma that has damaged the credibility of America’s criminal justice system. Put simply, in the absence of recorded interviews, defense lawyers have been able to undermine honest testimony by some FBI agents while, in other cases, agents incorrectly remembered, distorted or lied about suspect statements.

The failure to maintain electronic records of interrogations also created gaps in FBI intelligence-gathering, especially terrorism cases. Instead of maintaining an accurate and largely indisputable record, agents on the witness stand for decades have relied on their memories, interpretations and handwritten notes transcribed into a form known as the 302.

Critics have said that flawed system results in botched investigations, lost evidence, unprofessional conduct and false convictions. They noted that the historic DOJ practice was problematic in trials of suspects ranging from terrorist Osama bin Laden to TV star Martha Stewart to Oklahoma City bombing defendant Terry Nichols, and thousands of defendants with no public exposure.

The FBI, considered one of the most advanced investigative agencies in the world, helped pioneer the use of fingerprints, ballistics, electronic wiretaps, psychological profiling and other advanced techniques. Yet, while local police have audio- or video-recorded suspects for decades, some FBI agents and administrators doggedly resisted the use of a device more accurate than the pen.

As recently as 2005, the FBI declined to give The Arizona Republic a copy of its written policy requiring special authorization for recordings, or even to say when and why the rule was created. Bureau assertions that taping of suspects is a logistical problem, or inhibits honest interviews, are generally disputed by street cops, detectives and professors of criminology. In fact, taping of criminal suspects is now mandatory in at least eight states, either by statute or court decrees.

In 2006, The New York Times uncovered another explanation for the DOJ policy, spelled out in an internal FBI memorandum. Basically, it argued that jurors might be offended, possibly to the point of acquitting defendants, if they observed the deceit and psychological trickery legally employed by agents to obtain information and confessions.

Drizin said the FBI has obtained a number of false convictions in homicide cases, particularly on Indian reservations, because suspect interviews were not recorded. Drizin also noted that, in some recent trials, jurors have acquitted defendants because they mistrusted FBI testimony about interrogations that could have been recorded.

Fred Whitehurst, an attorney and ex-FBI agent who turned whistle-blower, said the new policy is “delightful,” adding, “What have we got to hide?”

Mel McDonald, a former U.S. Attorney for Arizona who now does criminal defense work, said FBI interrogations involve one agent taking notes while a second conducts the interview. While 302 records and agent memories may be inaccurate, he said, their testimony trumps a suspect’s recollection. In fact, a defendant who disputes the FBI statements could be charged additionally with lying to federal authorities.

“I’ve had more clients who told me, ‘That’s not what I said.’ ” McDonald noted. “But you’ve got two agents supporting each other. It’s your word against theirs. Who are they (jurors) going to believe?”

McDonald hailed the close of “an insane policy” at DOJ, declaring, “Bravo! It’s about time. It uses science to establish the truth … That’s a no-brainer.”

The DOJ no-taping rule had been partially lifted during recent years for criminal investigations in India.

As an example of the justice benefits, Hammond pointed to the case of Tymond Preston, an 18-year-old Navajo with severe intellectual disabilities who was convicted of child rape. Preston was found guilty, but this month 11 judges on the 9th U.S. Circuit Court of Appeals threw out his confession — which agents had videotaped — and ordered a new trial.

Based on video evidence, the justices unanimously agreed that the confession was involuntary because agents “fed him the details of the crime” and used numerous other coercive tactics.

The new policy contains an exception for public safety situations where a suspect must be questioned instantly to avert an imminent life-threatening danger — the so-called ticking bomb scenario. There also is an exemption for national security intelligence-gathering interviews.

 

 

Even a “Disney World” Defense Can’t Overcome a (False) Eyewitness

Jonathan Fleming was convicted of murder in New York in 1990.  He was just recently exonerated and released after spending 24 years in prison for the murder he did not commit.  The story has recently been reported on this blog with the Fox News story here.  You can also read the CNN story here and the AOL story here.

Fleming had an alibi for the time of the crime.  He was at Disney World with his family.  The hotel staff remembered him, his family vouched for him, and he had a hotel receipt for a collect phone call from the hotel on August 14, 1989 9:27 p.m., which was just 4 1/2 hours before the shooting in New York.  But despite all that, because he was identified by an “eyewitness,” he was convicted.  Quoting the CNN story, “The prosecution … produced a witness who said she saw Fleming commit the crime.”

The reason that I wanted to highlight this particular case is because it’s yet another example of how eyewitness testimony, even though false or mistaken, will trump a solid alibi.

This is not a rare occurrence. Data from the National Registry of Exonerations shows that false or mistaken eyewitness identification is a contributing factor in 43% of wrongful convictions.

And to top it off, in this particular case, the phone call receipt was found in the prosecution’s case file, but was never produced – can you spell “Brady violation?”   And — the “eyewitness” was offered a deal for her testimony, and then recanted 2 weeks after the trial; but of course, her recantation was not allowed by the court.

Does this stink, or what?!  I’m tempted to launch into a much broader exposition on the failings of the justice system, but will save that for a future post on “the nature of innocence work.”