Category Archives: Reforming/Improving the system

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.

 

Will They EVER Fix Forensics ?

We (I) haven’t posted here about forensics for some time, and the pot is long overdue for a stir. This post was triggered by a recent piece in the NY Times – Fix the Flaws in Forensic Science – see that NY Times story here. The Times story was in turn triggered by the recent “announcement”  (admission) by the FBI that FBI agents had been giving scientifically unsupportable testimony regarding microscopic hair comparison in thousands of cases for decades.

Because of a belief and fear that much of forensics was flawed, the NAS Report (National Academy of Sciences), Forensic Science in the United States, A Path Forward, was commissioned by Congress in Fall of 2005. The report was published in 2009. The report issued a scathing condemnation of the current state of forensic “science.” It was, of course met, with a firestorm of resistance from the forensic and prosecutorial communities. Regardless, the US Department of Justice and the National Institute of Standards and Technology announced the joint creation of a National Commission of Forensic Science (NCFS) in 2013 – see previous WCB posts here, and here.

The NCFS did not hold its first meeting until February, 2014. The Commission released its first nine drafts of policy statements for public comment in October, 2014. In January, 2015, it officially adopted three of those statements. The adopted policies are highlighted in the list below:

ncfs recs

While this has been going on, the sole federal judge on the commission, Jed Rakoff, resigned just last January in protest over the Justice Department’s position on an issue that would continue to favor prosecutors at the expense of full pretrial evidence exchange. There has since been an accommodation reached, but I suspect this is indicative of the Justice Department’s opposition to truly changing anything. This also causes me to wonder greatly about the objectivity of all the commission members.

Keep in mind also, that the commission is only empowered to make policy recommendations. It has no powers of oversight or enforcement, and no way to administer the adoption of its recommendations. My reading of the “tea leaves” here is that the advocates for the Justice Department and the existing forensic community have successfully kept the commission mired in politics and committees. So … there you have it. Six years after the publication of the NAS Report, a federal commission with no powers has adopted three policy recommendations.

In the meantime, the traditional forensic science community has been motoring along as if the NAS Report never happened. At the most recent American Academy of Forensic Sciences meeting, there was an active session on forensic odontology (bite mark analysis); a discipline for which the NAS Report states there is absolutely no scientific basis.

Do you wonder why I ask, “Will they EVER fix forensics?”

Case highlights harmful impact of flawed FBI hair testimony

The Guardian has effectively put a human face here on the tragedy of the FBI’s admission this week that its agents presented flawed testimony in almost every trial in which they testified against criminal defendants for more than two decades before 2000.

The face is that of George Perrot, whose case was previously covered on the Wrongful Convictions Blog here and in which, it should be noted, this writer has played a small role.

Perrot was convicted as a teenager on rape charges in 1985 greatly on the testimony of FBI agent Wayne Oakes that a hair found on the victim’s bed was similar to a known sample of Perrot’s hair. It didn’t matter to the jury that the elderly victim said that the rape didn’t occur on the bed or that the long-haired, bearded Perrot didn’t resemble the short-haired, clean-shaven man who raped her. Oakes’ testimony was enough, an appeals court later ruled, to put Perrot behind bars, where he has languished for 30 years.

Thanks to the pro-bono work of the Ropes & Gray law firm, Perrot is back in court trying to clear his name, but Massachusetts prosecutors are still defending his conviction. They say Perrot did not file his claim in a timely manner and that there is other evidence of his guilt — a common refrain that many others convicted on the FBI’s hair-comparison testimony are sure to hear in the coming months and years as their cases make it into court.

The Innocent Citizen’s Justice System Survival Guide

“Ours is a world in which justice is accidental, and innocence no protection.”     Euripedes, 400 B.C.

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I come from a legal family, so even though I did not go into law, I’ve had a closeup view of the justice system my entire life, which is, I think, one of the reasons I decided to devote my post-corporate life to innocence work. I saw too many things happening that were not congruent with my view of what a fair and just system should, and must, be. For the past seven years, I’ve been deeply involved in innocence work, and have become knowledgeable about the details of many, many cases (100’s) of wrongful conviction and wrongful imprisonment. Consequently, I’ve seen many ways in which actually innocent people become tragic victims of what we call “justice.” There are just so many ways the justice system can get it wrong. This has caused me to think about what it is that an innocent person can (and should) do when accusatorially confronted by this thing we call the justice system. [You might want to also read my previous post Why I Think the US Justice System is Broken, and Why It’s Not Getting Fixed.]

If you think being wrongfully charged, indicted, convicted, and imprisoned can’t happen to you, think again. It can happen to anybody. Just ask Debra Milke. The ways this can happen are countless, and despite the system’s best efforts, there are just too many ways the system can possibly get it wrong. I could give you lots of examples, but we won’t try to detail them here – just take a look at the National Registry of Exonerations, and keep in mind these are only the ones that have been so far successfully overturned within the system – there are magnitudes more. This article will try to give you some “suggestions” for what you might do if you find you’re being wrongfully suspected or charged with a crime. For those of you who have had no close interaction with the justice system, you might well think that I’m being radical and that I must come from somewhere in outer space … and you can think that right up until you get scooped into the meat grinder. Let me me just say, “Forewarned is forearmed.”

This article will be in six sections:

I.  Have a Lawyer You Can Call

II. Don’t Talk to the Police

III. The Plea Bargain

IV. Be Ready for Trial

V. Shaken Baby/Child Abuse (Abusive Head Trauma)  [This requires special attention and treatment.]

VI. If You Are Wrongfully Convicted

DISCLAIMER: I am not an attorney, and so cannot give you legal advice. These suggestions are only my personal opinion, and are solely the result of my exposure to the justice system and wrongful convictions over a period of years. They come with no guarantee. Every situation is unique, and you must always exercise your own judgment given the circumstances. They are just intended to get you thinking about how you would handle the situation of being wrongfully accused, and to give you some information about how the system works. I am certain that they cannot cover every possible situation, but hopefully, they will provide an overall, general guide for how you might deal with this. 

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Center for Prosecutor Integrity – Innocence Summit – June 12, 13

This from Ed Bartlett, Director of the Center for Prosecutor Integrity:

I’m pleased to report that we have now finalized the program for the 2015 Innocence Summit, to be held June 12-13 at the National Airport — Crowne Plaza in Arlington, Virginia. The Summit will feature an All-Star line-up of forward-thinking prosecutors, Innocence Network leaders, civil rights advocates, researchers, journalists, and others. These are some of the highlights:

  • On June 12, the Summit will lead off with a panel of four prosecutors who have challenged conventional wisdom and forged new models of prosecutorial practice.
  • The Friday evening banquet speaker will be former United States Attorney Joseph diGenova, a man who never hesitates to speak his mind!

On Saturday, I’m personally looking forward to Mara Leveritt’s presentation, “Death Threats and More: A Reporter Shares True-Life Experiences Investigating Criminal Justice Abuses.”

And I haven’t said anything about the impressive range of workshops…and networking opportunities….and more.

Check it out: http://www.prosecutorintegrity.org/summit/  Looking forward to seeing you June 12-13!

See the Summit schedule here.

Is Shaken Baby Syndrome the New Satanic Panic?

LA Weekly has just published an article titled ‘Is Shaken Baby Syndrome the New Satanic Panic?‘ The article highlights many frightening parallels between today’s SBS prosecutions and those of so-called satanic ritual child abusers in the 1980’s.

The article also features information from the recent documentary film by Susan Goldsmith ‘The Syndrome.’

Having closely followed the satanic ritual abuse panic of the 80’s, I found reading this story to be downright creepy. If you follow the SBS situation at all, this is a must read.

See the LA Weekly story here.

Hannah Overton Capital Murder Case Dismissed

See our previous post on the Hannah Overton case here.

Hannah Overton was convicted for murdering her 4-year-old stepson by salt poisoning. Given the evidence that the prosecutor had early on, and did not disclose to the defense, Overton never should have been charged in the first place. This was a “crime” that never happened.

See the KRIS TV (Corpus Christi, TX) story here.

Thanks to Camille Tilley for passing this story along.