Category Archives: Reforming/Improving the system

California Anti-Junk Science Forensics Bill Signed Into Law

Mike Bowers, on his blog Forensics in Focus, has posted the news that a new “anti-junk science forensics” bill has been signed into law in California.

The law permits post conviction defendants the ability to contest expert testimony that was presented against them at trial. In other words, convictions in which experts have either repudiated their past testimony, or used forensic “science” that is later deemed faulty by legitimate research, are subject to later proceedings reversing that conviction.

This is a huge deal, because it prevents prosecutors and judges from just using old case law as an excuse for ignoring habeas corpus appeals expressing new forensic research and attitudes.

Prosecutors Have All the Power

Mara Leveritt is a journalist and author who wrote the book Devil’s Knot, which was subsequently made into an award winning movie.  The book chronicles the case of the West Memphis Three, in which three young men were wrongfully convicted of the gruesome 1993 multiple murder of three eight year old boys.  See previous WCB posts on the West Memphis Three here and here and here.

In 2007, DNA and hair evidence recovered from the crime scene excluded all three of them.  A deal was struck with the prosecutor whereby the three were released from prison in 2011 (after 18+ years), but only after entering an Alford plea.  In an Alford plea, the defendant maintains his/her innocence, but concedes that the prosecution’s evidence would likely be enough to convince a judge or jury of guilt.  (Editorial Note:  In this editor’s opinion, the Alford plea is nothing more than a gimmick built into the justice system system that gives prosecutors an avenue to back out of a case while saving face.  It does nothing to change the facts of the case.  Just my opinion.)

Ms. Leveritt has recently taken on the responsibility of Director of the Center for Prosecutor Integrity‘s Wrongful Convictions Academy, which is brand new, and is just spinning up.  She is an Arkansas native, and has also authored a recent article about prosecutorial misconduct and the attendant lack of accountability and sanctions in Arkansas –  Prosecutors Have All the Power.  In the article she states, “Despite documented misconduct, especially Brady violations, no prosecutor in this state has been sanctioned in the past 25 years.”  While this article is Arkansas-specific, it can be applied to the situation nationwide in general.

SBS Documentary “The Syndrome” – Interview with the Producer

We posted here on the WCB about the new SBS Documentary The Syndrome a few days ago.  See that post here.

As I hope you all know, Sue Luttner is the editor of the blog OnSBS.  Sue was recently able to conduct a phone interview with the producer of The Syndrome, Susan Goldsmith, and posted about it here.

 

QUALIFIED Immunity for Prosecutors?

In the US, prosecutors have absolute immunity from civil suits brought by defendants whom they have wronged.  This has resulted in yet another manifestation of “absolute power corrupts absolutely,” and has encouraged prosecutors to break the rules in pursuit of convictions.

The Center for Prosecutor Integrity has been doing fundamental work in addressing the issue of prosecutorial accountability, and they have just published a new white paper titled Qualified Immunity: Striking the Balance for Prosecutor Accountability.  You can see that white paper here: Qualified-Immunity.

These excerpts from the paper – tracing the origins of absolute prosecutorial immunity in the US Supreme Court case of Imbler v. Pachtman:

“In 1976 the High Court handed down the long-awaited decision. Wary that prosecutors would be tempted to “shade” their prosecutorial decision-making under threat of a lawsuit, the Supreme Court held in Imbler v. Pachtman that prosecutors are unconditionally protected from civil liability as long as these actions were performed within the scope of their “advocative” duties.”

“Without a single dissenting vote, America’s highest court erected the doctrine of absolute prosecutorial immunity as the law of the land for prosecutors engaged in their advocative role.”

“By removing a key accountability mechanism and inducing an over-reliance on criminal proceedings and bar disciplinary actions, the Imbler decision unwittingly contributed to a culture of professional non-accountability. Without any meaningful prospect of enforcement, the ethical codes’ ability to accomplish the goals of punishment and deterrence has become, for all practical purposes, eviscerated.”

Adding Balance and Transparency to the Plea Bargaining Process

The Hon. Jed Rakoff — U.S. District Judge, Federal District Court in Manhattan — has expressed concern over the fairness and accuracy of outcomes resulting from plea bargaining. In the United States, plea agreement negotiations have become the resolution mechanism for the vast majority—more than 95 percent—of federal and state criminal cases. The judge believes that the process contributes to an unacceptable number of innocent people pleading guilty to crimes they did not commit.

“We have hundreds, or thousands or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty,” Judge Rakoff said at the University of Southern California Gould School of Law’s annual Neiman Sieroty Lecture earlier this year. Read an article in USCNews on his comments (here).

The judge noted in an article in the New York Daily News (here), “The current Continue reading

A Little More on Militarization of the Police

MPolice

According to the latest data from the National Registry of Exonerations, 46% of wrongful convictions have “official (including police) misconduct” as a contributing cause.  The state bestows official “police powers” upon the police, which does, in fact, make them very powerful; and most police misconduct is manifested in the form of abuse of power, rather than simple error.  In recent years, we have, increasingly, given the police not just “police power” but “military power.”  As Lord Acton so insightfully stated in 1887, “Power tends to corrupt, and absolute power corrupts absolutely.”  Giving military power to police brings them that much closer to absolute power, and that power becomes easier and easier to misuse.  This is compounded by the fact that the police have a demonstrated history of not being good at “policing” themselves, and official police oversight is perfunctory.  Police departments will claim to have “internal affairs” divisions.  I submit this like having the fox watch the henhouse, and they apparently don’t work, because police misconduct persists, and “official misconduct” continues to contribute to 46% of wrongful convictions.

See our previous WCB post about the militarization of police here.

Everyone has recoiled at what has recently transpired in Ferguson, MO.  A recent NY Times article relates events in Ferguson to the militarization of police:  here.

This all started in 1990 with Section 1208 of the National Defense Authorization Act passed by Congress.  In 1996 Section 1208 was replaced with the Section 1033 DOD program, which is still in place today.  And with the 1033 program in place, the wind down of the Iraq war opened the floodgates of military equipment available to police departments.  See the Newsweek article How America’s Police Became an Army: The 1033 Program.  See also the NY Times article War Gear Flows to Police Departments.  While this was certainly well intentioned, the legislators failed to grasp the psychological impact this would have on the people who would actually be using the equipment.

All the military equipment and fire power is scary, but all that stuff is really just an “enabler.”  What’s really scary is what’s going on in the brains of the cops.  They seem to be increasingly adopting a “battlefield” mindset – vanquish the enemy – and giving them MRAP’s and M-16’s substantially reinforces that state of mind.  Plus, if the police have all this stuff, of course they’re going to want to use it.  For example, we’ve seen the evolution of  excessive use of SWAT teams.  SWAT teams have been around since the 1960’s, but SWAT teams are now commonly used to perform such routine functions as serving warrants and making simple arrests.  There was a recent (Feb. 2014) debate between Radley Balko, Washington Post investigative reporter and author of “Rise of the Warrior Cop,” and Maricopa County (AZ) Attorney Bill Montgomery about the militarization of our domestic police. During this debate, Mr. Montgomery stated, “These ‘elite’ officers have to stay sharp and on alert. They have to practice.”  Practice by having a SWAT team storm a young mother’s home at 3:00 AM to serve a warrant and make an arrest?  Might I suggest this is “over the top?”

As an example of “military mindset,” I was recently startled by a news photograph of a police officer with what appears to be military style campaign ribbons on his uniform.  Campaign ribbons?  On a police uniform?  What’s up with that?  If this isn’t an indicator of a military mindset, what is?

Police Campaign Ribbons

If the situation calls for military intervention, then call in the National Guard.  That’s what they’re for.  But we just can’t have the “military” patrolling our streets and enforcing the law on a routine basis.

New Shaken Baby Syndrome Documentary – “The Syndrome”

A new, compelling documentary on the junk science of shaken baby syndrome, titled The Syndrome, will premiere at the Kansas Film Festival in October, 2014.

Synopsis:  The Syndrome tells the story of a group of doctors who say that shaken baby syndrome, the basis of hundreds of criminal cases every year, is not scientifically valid. The film focuses on three key doctors: A Georgetown University neurosurgeon, a former Minnesota state medical examiner, and the head of Stanford University’s Pediatric Neuroradiology Department. These doctors are part of a growing scientific movement coming to the defense of the some thousand people in prison for shaken baby. In an unprecedented criminal justice crisis, promoters of shaken baby syndrome are not backing down.

Watch the trailer here.

Editorial Comment:  Of course the promoters of this medical voodoo are not backing down.  For them, SBS has been their source of livelihood, notoriety, and power.