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The presumption of innocence exists in theory, not reality

By: Keith Findlay

Keith Findley is an assistant professor of law at the University of Wisconsin Law School, where he is co-director of the Wisconsin Innocence Project. He represented Steven Avery, subject of the “Making a Murderer” documentary, in the 2005 proceedings that produced DNA evidence to prove Avery’s innocence and exonerate him of a 1985 sexual assault conviction.

If, as the Supreme Court has consistently declared, the presumption of innocence is among the most fundamental principles in our criminal justice system, it is also among the most fragile.

The presumption is under constant assault from jurors’ natural assumption that if someone is arrested and charged with a crime, he or she must have done something wrong. It is also vulnerable to the media frenzy around high-profile cases, the fear-driven politics of crime, the highly punitive nature of our culture and the innate cognitive processes that produce tunnel vision and confirmation bias.

Indeed, research suggests that the presumption of innocence exists more in theory than reality. In studies, mock jurors predict a 50 percent chance of voting to convict — before hearing any evidence. Other research shows that while simulated jurors initially assign low probabilities of guilt, they abandon the presumption of innocence promptly as prosecution evidence is introduced.

[Why Scott Walker simply will not issue a pardon in response to ‘Making a Murderer’]

Given these natural inclinations, one would think a system built on the presumption of innocence would protect and reinforce that presumption. But in many ways, it does not.

Pretrial bail policies, for example, are not based on assessments of any likelihood of innocence or the need for innocent people to prepare for their defense, but solely on the risk that the (presumably guilty) accused might not appear for trial. On this score, the presumption of guilt accelerated in the early 1970s when notions of preventive detention — that is, complete denial of bail — emerged as part of the Nixon administration’s mission to control “criminals” before they committed crimes.

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The Injustice System: A tale of two Tyras

From: The Guardian

Tyra Patterson says she was an innocent teenage bystander who ran away from a murder. Prosecutors say she was party to a killing. In the first chapter of a Guardian special report, explore how a young woman from poverty-stricken Ohio fell victim to America’s addiction to incarceration – and what might still set her free

Prisoner 037737 has been locked up for 21 years and counting. In America, that is not very exceptional. You could say it’s almost ordinary.

Step back beyond the cell here in Ohio, a state which by itself has almost 70,000 people in prison and jail, and No 037737 becomes a grain of sand buried in a desert of incarceration. There are 2.2 million people locked up in the US – more than 100,000 of them women.
Today, the 7,787th day behind bars for Prisoner 037737, one out of every 110 adult Americans lives under the lock and key of the planet’s largest jailer: the United States of America. That represents almost one-quarter of the world’s total prison population, and almost one-third of the world’s incarcerated female population.

Prisoner 037737 is also black, which makes this American life all the more unexceptional. In Ohio, the ratio of incarcerated black people to the general African American population is almost six times the equivalent ratio for white people. Nationally, one in 18 black women can expect to be imprisoned at some point in their lives – a quotient that rises, for black men, to one in three.

But cold numbers can only teach you so much about mass incarceration in America today. Because Prisoner 037737 is also a person. She has a name. Her name is Tyra Patterson.

Tyra Patterson proclaims her innocence in crimes that have taken her away from her family and the outside world since the age of 19. Now 40, she has been gathering new evidence she believes will clear her in the murder of a 15-year-old girl, Michelle Lai, in 1994.

For six months the Guardian has been exploring Patterson’s life story, tracking her journey from elementary school dropout in poverty-stricken Dayton, Ohio, to a life sentence in the city’s female prison. The story that emerges is one woman’s struggle to have her claim of innocence heard within a system resistant to listening anymore.
“A tragedy happened in this case: Michelle Lai didn’t get to live her life,” David Singleton, the executive director of the Ohio Justice and Policy Center and associate professor at NKU Chase College of Law who is Patterson’s current attorney, said. “Tyra Patterson is alive, but she has been branded a murderer and her life has been taken away from her. The greatest tragedy of Tyra’s case is that she had a story of innocence to tell, and it never got told.”

Beginning today, with two diverging accounts of a murder, that story will be told.
But this is no re-trial: it’s the story of an American criminal justice system ​in which questionable convictions are secured and then doggedly upheld, swallowing up thousands of vulnerable people in the process.

Along the way, we hope to provide surprising clues as to how a life behind bars came to be so very unexceptional – so ordinary – in 2016, in the land of the free.

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High Court Acquits Man in a Rape Case Based on New DNA Evidence

From the Japan Times:

High court acquits man in 2012 teenage rape case based on DNA test


A high court has acquitted a man charged with raping a teenage girl in 2012, overturning a lower court ruling that gave him a four-year prison term.

The Fukuoka High Court’s Miyazaki branch issued a ruling Tuesday saying that a fresh DNA analysis did not prove that the 23-year-old man from the city of Kagoshima was the culprit.

It also said the police may have hidden the result of an earlier DNA analysis that did not match that of the defendant.

“In determining the defendant to be the criminal, semen (found in the victim’s body) should be that of the defendant. But the DNA analysis (conducted during the appeal trial) did not support her arguments,” presiding Judge Makoto Okada said.

In the DNA examination conducted by the Kagoshima Prefectural Police, the quantity of the semen found inside the body of the 17-year-old victim was reportedly too small for analysis.

The man’s lawyers had requested a fresh DNA analysis during the appeal trial, which showed the DNA did not match his. The high court said the result “was credible.”

The court acknowledged the defendant’s release from prison last March after the DNA test was conducted.

Okada was also critical of the staff in the police crime lab, who had disposed of all the used DNA solution and the memo that recorded the analysis process.

“The possibility cannot be ruled out that (the police decided to say that an) analysis was impossible because a different person’s DNA was detected, reflecting investigators’ intentions,” he said.

Okada also criticized prosecutors for asking experts to conduct another DNA analysis without notifying the court and the defense counsel.

“It can be suspected they intended to disclose the results only in the case that the outcome turned out to be favorable for them,” he said.

Kazunori Nakada, deputy chief prosecutor of the Fukuoka High Court Public Prosecutor’s Office, said it is “deplorable” that the court dismissed their arguments and that it will “deal appropriately” with the ruling after checking the content thoroughly.

The man, who requested his name be withheld, told reporters he was able to make it through the difficult period because of “the support of my family.”

“All I can say is that I’m happy,” he said, with tears in his eyes.

The Kagoshima District Court ruled in 2014 that DNA evidence detected from the victim’s breast was from the defendant. It also said the existence of semen, although unable to be analyzed, backed her accusations.

The man was indicted for allegedly assaulting the 17-year-old in an entertainment district in the city of Kagoshima in October 2012.

The man had said he had “no memory because I was drunk” and had insisted he was not guilty.

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How Texas took the lead on reforms

Texas is not the first state that would normally come to mind in a discussion of criminal-justice reform. But the wrongful conviction of Tim Cole spurred the tough-on-crime state to fix its eyewitness identification procedures, increase the money authorized to be paid to exonerees and set up an advisory commission on wrongful convictions. Unfortunately, The New Yorker reports here, Cole never lived to see the reforms put in place.

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Scholarship Spotlight

Conviction Review Units: A National Perspective
John Hollway
University of Pennsylvania Law School – Quattrone Center for the Fair Administration of Justice

December 23, 2015

U of Penn Law School, Public Law Research Paper No. 15-41

Over the past 25 years, Americans have become increasingly aware of a vast array of mistakes in the administration of justice, including wrongful convictions, situations where innocent individuals have been convicted and incarcerated for crimes they did not commit. The most prevalent institutional response by prosecutors to address post-conviction fact-based claims of actual innocence is the Conviction Review Unit (CRU), sometimes called the Conviction Integrity Unit. Since the creation of the first CRU in the mid-2000s, more than 25 such units have been announced across the country; more than half of these have been created in the past 24 months.

CRUs have grown up ad hoc, and independently defined its structure, scope, and operations, often in reaction to a limited number of specific cases with unique circumstances. Very few have written protocols, policies, or procedures, and few of those have been made public. Given this rapid increase in number and the lack of standardization or evaluation of policies, procedures, and impact of CRUs, a more detailed evaluation of the actual policies and practices of operating CRUs may be helpful to a variety of audiences. This paper provides an analysis of a national survey of CRUs to identify policies and practices established by CRUs across the country, to assist: (a) Current CRUs in understanding how their peers have approached common challenges; (b) Offices without CRUs in the creation of effective units; and (c) Communities with metrics to evaluate the units and their utility.

Full Article Available Here: Conviction Review Units: A National Perspective

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After 39 years behind bars for a crime he didn’t commit, Ricky Jackson is cherishing his freedom

See the video here

CLEVELAND – This holiday season is taking on a whole new meaning for a group of people in Cuyahoga County. All of them spent decades behind bars.

But they were released after their murder convictions were overturned.
“It was just hard to make that distinction right at that moment when I stepped outside and that cold downtown Lake Erie air hit me,” recalled Ricky Jackson, who spent 39 years in prison before his murder conviction was overturned in 2014. “It was like wow.”

Jackson is one of six inmates freed on the grounds of innocence in the past 13 months in Cuyahoga County. That’s thanks to the Ohio Innocence Project, a non-profit organization that works to free innocent people who are serving time in prison.

In the project’s 12-year history, the organization has freed 23 people in Ohio.

“Cleveland is the largest population center in the state, they have more criminal prosecutions, they’re going to have more exonerations,” said Brian Howe, at attorney for the Ohio Innocence Project. “Every time you identify one of these mistakes, it’s hopefully improving things.”

Of the six exonerated, two of them are Jackson’s friends, Kwame Ajamu and Wiley Bridgeman. They were also convicted of the same murder, which happened in 1975. The others are Derrick Wheatt, Laurese Glover and Eugene Johnson. They were convicted of the 1995 shooting death of 19-year-old Clifton Hudson.

The state is granting Wheatt, Glover and Johnson a new trial.

“It [Being released] was like being reborn,” said Jackson, who added that he is not bitter about his past and still has faith in the criminal justice system.


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