Category Archives: Reforming/Improving the system

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.

The Innocent on Death Row – NY Times Editorial

We (Martin Yant) recently reported here on the WCB about the North Carolina exoneration of death row inmate Henry Lee McCollum.  McCollum’s exoneration has prompted a highly compelling editorial by the The NY Times editorial board.  That editorial with active links appears here.  It appears below without embedded links (bolding emphasis is mine):

The Innocent on Death Row, by THE (NY Times) EDITORIAL BOARD, September 3, 2014

The exoneration of two North Carolina men who spent 30 years in prison — one on death row — provides a textbook example of so much that is broken in the American justice system. And it is further evidence (as though more were needed) that the death penalty is irretrievably flawed as well as immoral.

In late September 1983, an 11-year-old girl named Sabrina Buie was found murdered in a soybean field in Robeson County. She had been raped, beaten with sticks and suffocated with her own underwear.

Within days, police got confessions from two local teenagers, Henry Lee McCollum, 19 at the time, and his half brother, Leon Brown, who was 15. Both were convicted and sentenced to death.

The crime was so horrific that it has echoed for decades through North Carolina politics and beyond. In 1994, after Justice Harry Blackmun of the Supreme Court announced that he opposed capital punishment in all circumstances, Justice Antonin Scalia cited the Buie murder as a case where it was clearly warranted. “How enviable a quiet death by lethal injection compared with that!” he wrote.

On Tuesday, a state judge ordered both men freed after multiple pieces of evidence, some of which had never been turned over to defense lawyers, proved that neither Mr. McCollum nor Mr. Brown was responsible for the crime. DNA taken from a cigarette found at the crime scene matched a different man, Roscoe Artis, who is already serving life in prison for a similar murder committed just weeks after Sabrina Buie’s killing.

Virtually everything about the arrests, confessions, trial and convictions of Mr. McCollum and Mr. Brown was polluted by official error and misconduct.

No physical evidence linked either man to the crime, so their false confessions, given under duress, were the heart of the case the prosecutors mounted against them. Both men’s confessions were handwritten by police after hours of intense questioning without a lawyer or parent present. Neither was recorded, and both men have maintained their innocence ever since.

Equally disturbing, Mr. Artis was a suspect from the start. Three days before the murder trial began, police requested that a fingerprint from the crime scene be tested for a match with Mr. Artis, who had a long history of sexual assaults against women. The test was never done, and prosecutors never revealed the request to the defense.

It was not until 2011 that the North Carolina Innocence Inquiry Commission, an independent state agency that had taken on the men’s case, discovered the old fingerprint request. The commission also found that multiple statements in the two confessions were inconsistent with each other and with the facts of the crime. In July, the commission finally got the full case file and matched the DNA to Mr. Artis.

None of these pieces mattered to the prosecution in 1984. The prosecutor on the case, Joe Freeman Britt, was listed in the Guinness Book of World Records as the “deadliest prosecutor” for the nearly 50 death sentences he won during his tenure. Almost all have since been overturned.

Mr. McCollum and Mr. Brown, who are now middle-aged, have a hard road ahead. In addition to the difficulties of adapting to life after three decades behind bars, both are intellectually disabled. (Since their conviction, the Supreme Court has banned the death penalty for both juveniles and those with intellectual disabilities.)

Cases of capital prosecutions based on flimsy evidence or marred by prosecutorial misconduct, not to mention racial bias, are distressingly common. Yet, even as death-penalty supporters insist that only guilty people are sent to their death, it is now clear that Justice Scalia was prepared 20 years ago to allow the execution of a man who, it turns out, was innocent.

How many more remain on death row today? Can the American people be assured that none will be killed by the state? For this reason alone, the death penalty must end.

A version of this editorial appears in print on September 4, 2014, on page A26 of the New York edition with the headline: The Innocent on Death Row.

A Case for Mercy and Discretion in Criminal Justice

“I have always found that mercy bears richer fruits than strict justice.”

– Abraham Lincoln

So-called tough-on-crime policies in the United States over several decades have resulted in unanticipated changes in the criminal justice system that most Americans probably do not fully realize. Mandatory sentencing, policies such as “three strikes,” and increasing use of plea bargaining as opposed to jury trials have prompted an explosion in the prison population and unprecedented prosecutorial authority. With all due respect to those prosecutors who serve us well, we now know that increased power and immunity from abuses have enabled prosecutorial misconduct, a significant contributor to wrongful convictions.

While the Innocence Project and other organizations work to correct miscarriages and prevent others, and new models such as conviction integrity units seek to address the failure of the appeal process to correct conviction errors, a recent case demonstrated the appropriate use of an intact but rarely used remedy: mercy and discretion by public officials.

These capacities once broadly utilized by judges in sentencing may be the most efficient way to cure injustices whether wrongful convictions or unfair sentencing. In a recent illustration, no one questioned the guilt of Francois Holloway. The New York Times reported (here) and (here) that he was charged in 1995 with three counts of carjacking and using a weapon during a violent crime (he did not carry a gun but his accomplice did).

When the government prosecutor offered Holloway a plea deal with a prison term of 11 years, he declined. Holloway’s lawyer assured him that he would win at trial.

His attorney was wrong. Continue reading