Category Archives: Reforming/Improving the system

Waiting is a Beast

Below is a link to a 17 minute video. This is Prof. Theresa Newman giving a recent TED Talk. She is co-director of the Duke Law Wrongful Convictions Clinic.

I have had the distinct honor and privilege of working with this lady on a number of wrongful conviction cases in North Carolina. She is one of those people who we should have many, many more of in this world.

Interestingly, I was deeply involved in both the cases she talks about. And I can say that, for all of us, the decision in Derrick’s case was truly a gut punch, as you will see. Unfortunately, this came at the same time that we lost “Al’s” case here in Ohio. Al had documentation and witnesses to prove he was in NY City at the time the murder was committed in Lorain, OH; but because of false eyewitness testimony, he was convicted – and the conviction was upheld.

We relish being able to talk about the successes, the exonerations, but they are truly rare compared to the number of wrongful convictions that exist. This is a heartwrenching business.

Prof. Newman talks about establishing a new paradigm for resolving wrongful conviction cases; but the wait will be long, and . . . . . . .

Waiting is a Beast

 

Debra Milke Speaks

Today, Debra Milke, exonerated after 22 years on Arizona’s death row for the murder of her 4 year old son, appeared and spoke at a press event.

See her very eloquent press conference statements here. And see the remarks from her attorney, Lori Voepel, here.

PBS’s Recent Segment on SBS (Shaken Baby Syndrome)

A Disputed Diagnosis that Sends Parents to Prison for Abuse.

Last evening (3/23/15), PBS aired a segment that takes a critical look at the diagnosis of Shaken Baby Syndrome. The story features Kate Judson, who is the Innocence Network SBS Litigation Fellow, and who has been doing phenomenal work in not only helping those wrongfully convicted of SBS, but also in trying to bring the medical and legal communities together to achieve a true scientific understanding of the causes and symptoms.

See the 10 minute video here.

Washington Post Article on SBS (Shaken Baby Syndrome)

A disputed diagnosis imprisons parents

Debbie Cenziper of the Washington Post, after a year-long investigation in conjunction with the Medill Justice Project, has written an article addressing the controversy surrounding the diagnosis of Shaken Baby Syndrome (SBS).

This is the most comprehensive general publication article on the subject I have seen, and she interviewed people on both sides of the issue. I have extracted some selected quotes:

Dr. Patrick Lantz: “If doctors see retinal hemorrhages, they say it’s abuse, but it’s as scientific as a fortuneteller reading tea leaves.”

Dr. George Nichols: “Shaken Baby Syndrome is a belief system rather than an exercise in ­modern-day science.”  “My greatest worry is that I have deprived someone of justice because I have been overtly biased or just mistaken.”

Dr. Jonathon Arden: “A lot of people in this field, especially many of the pediatricians, make statements that are absolute and dogmatic and do not allow for the exceptions that we know exist. Do you want to be involved in somebody’s wrongful conviction because you had this dogmatic approach that it must be trauma, it must be shaking?”

Dr. Patrick Barnes: “All of the treating physicians simply assumed trauma and stopped looking for alternative explanations. That is not sound science and cannot be the basis of a reliable prosecution.”

Dr. Jan Leestma:  “The original papers that espoused Shaken Baby were basically opinion papers with essentially no science applied to them.”

Dr. Norman Guthkelch: “I am doing what I can so long as I have a breath to correct a grossly unjust situation. I think they’ve gone much too far.”

See the Washington Post article here.

The Debra Milke Lawsuit – A Perspective

Camille Tilley, whose daughter Courtney was wrongfully convicted in Maricopa County, was kind enough to post a link to the lawsuit recently brought by Debra Milke against a number of Phoenex and Maricopa County, AZ officials regarding her wrongful conviction for the murder of her 4 1/2 year-old son. This post was contained in a comment to our recent story about the Debra Milke case.

If you haven’t had a chance to read the lawsuit, I think it deserves some special comment. You can access it directly here:  Debra Milke-lawsuit. It’s very interesting to note that Milke is represented in her suit by the firm of Neufeld Scheck & Brustin. You probably know that Peter Neufeld and Barry Scheck are the founders of the original Innocence Project.

I’ve read the suit, and if you think this kind of thing can’t happen to you, you need to read it too. It reads like a bad crime novel, but the really scary part is that it actually happened, and the people who are supposed to be the “good guys” are actually the criminals. Joe or Jane citizen has absolutely no defense against this.

The official misconduct in this case is sordid, stomach turning. Could it possibly be that this case, and this suit, will be the crowbar that finally pries the lid off the slimy justice system snake pit called Maricopa County?

Debra Milke Case — She Remains Free — and IT’S DONE !!

Today, the Arizona Supreme Court refused to grant the prosecution a retrial for Debra Milke. Milke’s conviction had been overturned by the US 9th Circuit for prosecutorial misconduct, and sent back to the Arizona courts.  See the AZ Central story here.

We’ve covered this case extensively. See here, here, here, and here.

And …….. Debra Milke has filed suit against Maricopa County, AZ, the prosecutor (Bill Montgomery), the detective (Armando Saldate), and twelve other officials. See the Courthouse News Service article here.

All I can say is …. YOU GO, GIRL!

EVERYBODY Is Supposed to Tell the Truth in Court ……. Right??

The genesis of this post was the recent action by the US 9th Circuit in California, in which the court recommended perjury charges against a prosecutor who had lied to the court. Please see our previous post on this case here.

When I first saw this, my initial reaction was “holy smoke!” This is precedent shattering. But when you read the details, the potential perjury charges were recommended because the prosecutor in question had lied while testifying. This situation does not cover a prosecutor’s lying in court when not officially sworn in and under oath, which is basically all the time.

That’s when I had the epiphany. Here’s my idea. Let’s have all trial counsel, prosecutors and defense attorneys, sworn in at the beginning of each trial. It’s so SIMPLE, and would COST NOTHING. At most, this would take 60 seconds of the bailiff’s time at the beginning of a trial, and then it’s done.

EVERYBODY is supposed to tell the truth in court, right? Any citizen who testifies swears an oath to tell the truth, and if they lie, they’re subject to perjury. Why should prosecutors be any different than the citizen? Of course, they will say they have a “code of ethics” that governs their behavior, but apparently this code of ethics has no legal teeth to it, because prosecutors lie in court routinely without consequence. Why should they not be exposed to the same legal rules as anyone else? What’s the big deal about just promising to tell the truth? Any truly honest, ethical person should gladly agree.

Here’s an example of how that could work. The judge asks the prosecutor, “Have you turned all relevant and germane evidence over to the defense?” The prosecutor will answer, “Yes, your honor, to the best of my knowledge.” THEN, if it is later determined that the prosecutor knowingly withheld evidence, it’s not just a Brady violation (which seems to have no penalty for the prosecutor), it’s perjury. The same situation would apply if the judge’s question is “Have you offered any incentives to this witness for his testimony?”

The LOGIC and FAIRNESS of this is undeniable and inescapable. How can anyone argue against it? It takes no time and it costs no money, and it levels the playing field.

Now, I’ve bounced this idea off a number of colleagues, and the uniform response has been, “Great idea, but it will never happen.” Of course the reason for this response is because of the politics involved. I seriously question whether you could ever get a state legislator to even sponsor such a bill, unless maybe they had a death wish. So I looked into what it would take to get such an issue on the ballot for a general election. Here in Ohio, this is called an Initiated Statute, and there is a constitutional process by which to undertake it. This process is positively daunting, and well beyond my meager capabilities. There has been only one such Ohio statute enacted within the last 10 years that I could find – the statewide smoking ban.

There must be a way. If you like the idea, I encourage you to run with it. Take it as your own. There must be a way. This is only fair.