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

What’s Next for Innocence Work in the UK?

From thejusticegap.com:  By Hannah Quirk

The End of Innocence, and The Chance of a New Beginning

The sudden demise of the Innocence Network UK (INUK) has caused consternation amongst those working with students on miscarriage of justice cases  – but it also offers a chance for anew beginning in clinical legal education in this country. Following my work at the Criminal Cases Review Commission (CCRC) and an American innocence project, I argued in 2006, that criminal justice policy transfers between these two countries are not straightforward. Now seems a good opportunity to revisit some of those concerns.

Many of the problems with the work of INUK stem from the fact that it was just assumed that innocence projects were a good idea in this country. Innocence Projects in the USA are a commendable – if wholly inadequate – response to the appalling numbers who are wrongly convicted, with no hope of post-conviction legal assistance. These projects investigate and litigate cases that can also help campaign for criminal justice reforms. The situation in England, Wales and Northern Ireland is very different (Scotland has its own body).

In this country, a range of measures governing the collection and use of evidence has reduced the most egregious errors – the television series Life on Mars was founded on the audience recognising how policing had changed since the 1970s. Unlike in the USA, very few cases turn on DNA analysis which means that most appeals are on the basis of unsafety – we can never know with certainty whether the individuals were factually innocent or not. The nature of the caseload in this country is different; there far more are domestic sex abuse cases which bring unique investigatory challenges. Most significantly, we have a state funded body that investigates miscarriages of justice and refers cases back to the appeal court where appropriate.

Rather than continuing trying to shoehorn the work being done into the Innocence Network’s (trademarked) template, we have an opportunity to reflect on the experience gained over the last decade and consider the best way to proceed. Now is the time to think about what these projects are trying to achieve and what kind of assistance they can offer those claiming to be wrongly convicted. This needs to take into account the different types of cases in this country, the different level of legal education (undergraduate here rather than post-graduate in America) and how to work with the CCRC which remains the only mechanism for getting a conviction quashed. The most important consideration is, of course, how appellants are treated but there are also questions about students that require attention.

Assuming the university-led work is to continue, at what the CCRC chairman has said is a challenging time for his organisation, the following points are important:

  • Should ‘innocence’ be in the name? It is a compelling title but – as the projects have discovered – vanishingly few cases are of demonstrable innocence. The legal test that students need to apply is ‘unsafety’ – boring, bureaucratic but infinitely more protective of both suspects and the integrity of the criminal justice system. We should be teaching students – some of whom will become defence lawyers, prosecutors, police officers, journalists or politicians – why that test is so important. Students at the University of Northumbria who worked on Alex Allen’s successful referral and compensation claim, work from the Student Law Office for example.
  • What work should the students undertake? As Michael Naughton explained in his statement about INUK’s future, the realities of the undergraduate curriculum mean that it is difficult for students to dedicate sufficient time to a case. Any case that is not concluded in the academic year, has to wait to be reallocated, new students have to familiarise themselves with the case – and more time is lost for the applicant. This is unsatisfactory for students who do not see a case to completion, and dispiriting for applicants and their loved ones. In cases where there is a potential referral, this can mean a person spending years longer in prison than if they had gone directly to the CCRC. It might be more profitable for all concerned, if students focused on writing applications to the CCRC for applicants and monitoring the case progression, (as I understand students at the University of Leeds Innocence Project do). Research has indicated that CCRC applicants with legal assistance have a greater success rate). Those projects that want students to undertake investigations could focus on cases that have already been rejected by the CCRC so there is nothing to lose by any delay caused.
  • What should students not do? Emily Bolton, who founded the Innocence Project New Orleans(IPNO) and is now establishing the Centre for Criminal Appeals said in an interview the answers are not going to be in the office or on the phone but found by knocking on doors and revisiting crime scenes. If I’m missing a fact, I get my car keys and get out and find someone who can give me the answers.’ This encapsulates exactly why the US experience cannot be imported here – such actions could fatally compromise an appeal if the Court of Appeal considers it has been tainted. There are also risks to students engaging in such work – whether in contacting potential witnesses, sex offenders who enjoy rehearsing the details of their cases, or through the distressing nature of some of what they read. Kevin McMahon, founder of Merseyside Against Injustice, was convicted of perverting the course of justice for seeking a retraction statement from a prosecution witness before an appeal hearing.

In 2005, I left the CCRC and spent six months working at IPNO. I planned to conduct a piece of research comparing how miscarriages of justice are dealt with in the UK and the USA. Within a week, I realised that my project would have to change – the two systems were worlds apart.

I had left a well-funded, stable institution with statutory investigative powers, for an office that was scrabbling for funding, run by a handful of overworked staff supported by interns, was literally being eaten by termites, faced huge resistance from the police and prosecutors and was shortly to have to cope with Hurricane Katrina.

I was filled with admiration for the work of innocence projects but returned home with a renewed appreciation of the – obviously imperfect – system in this country. I found it baffling that the American model was being looked to for inspiration when what we had here was so much better.

None of this is intended as a criticism of those who have worked very hard to establish these projects over the last decade, but good intentions can still have unfortunate consequences. These cases are amongst the most difficult in the criminal justice system – despite all the problems with the National Health Service, most of us would be uncomfortable at the idea of medical students attempting brain surgery. Whilst the Americans may love Sherlock, importing the Scooby Doo model here (‘… and I would have gotten away with it too, if it hadn’t been for you meddling kids!’) is not necessarily the answer.

To misquote George Bernard Shaw, when it comes to wrongful convictions, America and England are separated by much more than a common language. This country has led the world in its response to wrongful convictions. Maybe the furore over INUK marks the time to set out on charting our own distinctive course in clinical legal education.

 

Tuesday’s Quick Clicks…

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.

China’s Top Prosecutor Vows to Fight to Prevent Wrongful Convictions…

From the ShanghaiDaily.com:

BEIJING, Sept. 4 (Xinhua) — China’s top prosecutor has pledged efforts to prevent miscarriage of justice following the high-profile acquittal of a man previously convicted of murder.

Procurator-General Cao Jianming called on judicial workers to reflect on problems that persist in the judicial system, despite attention and measures to address them, according to an article in the Thursday edition of the People’s Daily, the flagship newspaper of the Communist Party of China.

Last month, a court in east China’s Fujian Province acquitted Nian Bin, a man imprisoned for murder, citing insufficient evidence.

Nian had been convicted and sentenced to death in 2008 by a court that found him guilty of poisoning four people, causing two deaths.

His acquittal in the case raised public outcry for stricter implementation of rules to protect defendants in the face of doubt or insufficient evidence.

Some judicial workers have misconceptions about law enforcement, which have resulted in the presumption of guilt in their work, Cao said at a recent commencement ceremony of the National Prosecutors College.

In some cases, defendants were not given the benefit of the doubt, and some prosecutors have relied excessively on confessions and testimony rather than factual evidence, he said.

Some procuratorial workers haven’t paid proper attention to protecting defendants’ rights and due process when enforcing the law, according to the top prosecutor.

Cao called on the country’s procuratorial workers to adhere to professional ethics and the rule of law and prudently practice their duties in supervising criminal procedures.

Cao stressed that unlawfully obtained evidence should be ruled out in accordance with law.

He told law enforcers to resist the temptation of money and interference due to personal relationships.