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

Kyodo

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.

“Conviction Integrity Units” – Foretelling the Future?

We’ve posted previously about our (my) high degree of skepticism regarding the actual integrity of, and motivations for, so-called “conviction integrity units” in prosecutors’ offices. Please see:

A Word About Conviction Integrity Units

Conviction Integrity Units – A Skeptic’s Perspective

In both of these articles we made note of the fact that the New Orleans District Attorney and the Innocence Project – New Orleans had agreed to establish a joint conviction integrity unit. This would be “ground breaking” for a prosecutor to team up with an innocence organization for this, because it would provide absolutely objective oversight of the CIU (which none of them have, because they are totally contained within the prosecutor’s office); and we said this will bear careful watching.

In the second of the above articles, we stated that when the conviction integrity units eventually start to be disbanded (which I believe they will), we will hear one of these reasons, or a combination of the two, as the justification:

1) We’ve fixed everything there was to fix, and we promise to behave ourselves in the future, so the CIU is no longer needed.

2) Budget constraints and the requirements of ongoing prosecutions force us to apply the resource devoted to the CIU to more urgent business.

Please see Mark Godsey’s “Quick Clicks” from Monday, Jan. 11, 2016 here for news that the project between the New Orleans District Attorney’s office and the Innocence Project – New Orleans to form a joint conviction integrity team has been abandoned. And the reason? Budget.

Hmmm. Really?

Final comment. The very existence of “conviction integrity units” begs the question – why? Because they can’t get it right the first time? But given that honest errors leading to a wrongful conviction may occur, leaving it to the prosecutors to correct their own mistakes and misdeeds is not the right way to do it. Having prosecutors oversee prosecutors is like having cops oversee cops, and we know how that works.

 

Monday’s Quick Clicks…

Friday’s Quick Clicks…

Wednesday’s Quick Clicks…

Prosecutors Oppose New Trial for Melissa Calusinski in SBS Case

We’ve previously posted about the Melissa Calusinski case in Lake County, IL here. It would seem to clearly be a case of a coerced false confession, combined with bad medical “science.”

Lake County State’s Attorney, Michael Nerheim, has already declined to have his so-called “conviction integrity unit” review the case.

Now, despite the fact that the Lake County Coroner officially changed the cause of death from homicide to undetermined, and despite the fact that newly discovered X-ray evidence shows that the child had experienced previous head trauma, the prosecution is opposing a request for new trial by Calusinski’s attorney.

Why are we not surprised? See the Lake County Daily Herald story here.

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

Abstract:
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

Monday’s Quick Clicks…

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.

 

Are Sex Offender Registries Cruel and Unusual Punishment?

Are there people who commit heinous sex crimes? Of course, and there are also people who commit heinous murders; and while a murderer is a murderer is a murderer, I submit that the percentage of sex offenders who are truly profound, violent, serial offenders is a tiny fraction of the total number of casual, one-time, often non-violent, and even unknowing people who commit a sexual transgression. However, the laws get written and enforced assuming that any sex offender is a wild-eyed, crazed, unstoppable sex fiend. It’s the way it is. The moral core of our society instills the belief that anything having to do with sex (outside the marital bedroom, in bed, at night, under the covers, with the lights out) is anathema; and combine this with the innate human predilection for revenge, and you wind up with our sex offender laws. Make no mistake – the people who are truly dangerous, violent, serial offenders need to be dealt with appropriately, and they need help. But why does some guy whose date lied to him about her age have to wind up on the sex offender registry for life, even after doing prison time? And the same applies when a vindictive spouse or ex-spouse gets the kids to lie about being molested; or when an angry ex-girlfriend makes a false claim of rape.

We’ve posted previously about the quagmire into which sex offenders, particularly those who are wrongfully convicted, are thrown by the justice system. The SOR’s have an incredibly punitive and damaging effect not just on the person on the registry, but also on their families. Many on the registry are not even allowed to be with their own children. Please see:

(a) Sex Offender Registries – Time for a Change

(b) The Wrongfully Convicted Sex Offender

As for being “effective” — sex offender registries are nothing more than public shaming, that in many (most) cases is inflicted for a lifetime. They’re no different than the “scarlet letter” of the 1600’s Puritan times. And what is absolutely mind-blowing is that the SOR’s have been proven not to work, and they cost the taxpayers gobs of money (see reference ‘a’ above). But now that they’ve become institutionalized in the justice system, they’re a political football. Now we have lots of people whose livelihoods derive from the SOR’s, and an entire industry has built up around the maintenance and support of SOR’s (just like the prison system). To advocate sensible, logical approaches to the problem has become political suicide for the politicians and legislators.

And it’s incredibly easy to be wrongfully convicted of a sex crime. All it takes is a false or mistaken accusation, and you are placed in the position of having to prove your innocence.

The very existence of SOR’s begs the question:  why don’t we have murderer’s registries, or assault & battery registries, or manslaughter registries, or robbery registries, or kidnapping registries, or securities fraud registries?

So are sex offender registries cruel and unusual punishment? Please see the probing and cogent article by Judith Levine here. The SOR’s immediately became ironically counterproductive, as evidenced by this quote from the article:

Megan’s Laws were supposed to protect children. But two decades of research show they don’t improve anyone’s safety, least of all children’s.  In fact, it may be minors themselves who are harmed most by the laws put in place to safeguard them.

Such is the stupidity of the legislative and law enforcement process we endure today. The “justice system” will sanctimoniously declare, “The SOR’s are in the best interest of public health and safety.” But they’re blindly ignoring a data-driven understanding of what they actually accomplish and the untold harm that they cause.

 

Tuesday’s Quick Clicks…

Monday’s Quick Clicks…

Monday’s Quick Clicks…

At Last. The Exonerated Get a Tax Break.

If you’ve been wrongfully convicted, and wrongfully spent years, if not decades, of your life in prison, you may or may not be entitled to compensation after exoneration. Thirty states, the District of Columbia, and the federal government provide some form of compensation to the wrongfully convicted. The conditions under which compensation is paid, and how much is paid, vary widely from state to state. And there are twenty states that provide nothing.

Now imagine this. You’ve been exonerated of a crime you never committed after spending many years in prison. You successfully sue the state for compensation, and then find out the federal government is going to levy income tax on your award. Does that sound right? Of course not, but that’s the way it’s been.

Thankfully, Congress has just passed The Wrongful Convictions Tax Relief Act of 2015, which will eliminate federal income tax on wrongful conviction compensation.

See the story from The Innocence Project here.

Courtney Bisbee Granted Evidentiary Hearing !

Courtney Bisbee was a responsible, law-abiding, hard-working single mother working in the Scottsdale, AZ school system in 2004 when she was sucked into the criminal justice system by false allegations of “improper touching” of a minor.

For background, please see our previous post about this case: A Broken Justice System – Cases in Point – Part 2 – The Case of Courtney Bisbee.

There is recent significant news. Federal District Court Magistrate Judge David Duncan has granted Courtney not just a hearing, but an evidentiary hearing. The two day evidentiary hearing is scheduled for March 14 and 15, 2016.

As we have mentioned before, Courtney filed an absolutely compelling habeas petition with the court 3 1/2 years ago. At the time, former Federal District Chief Judge Roselyn O. Silver, who is now on the 9th Circuit Court of Appeals, reviewed Courtney’s initial petition for Writ of Habeas which was filed April 2012. Silver responded within one business day stating Courtney had 13 viable claims. To date, there has been no further action on Courtney’s habeas petition. Hopefully, the exculpatory evidence cited in Courtney’s habeas petition will be allowed and considered before the court during the hearing.

It comes as no surprise that the prosecution has been fighting ‘tooth & nail’ to keep the hearing from happening. They immediately filed with the court a Motion for Reconsideration to vacate Courtney’s evidentiary hearing, which Judge Duncan rejected. They continue to work furiously to scuttle Courtney’s chance to finally, after more than 10 years, receive justice. For example, the state writes, “Indeed, to proceed with an evidentiary hearing, when any new evidence presented cannot be considered by the federal courts pursuant to Pinholster, would be a waste of state, federal, and judicial resources”. Excuse me? This statement is an insult to the justice system. The state will spend any amount of “resource” when pursuing a conviction. Why now, with actual justice in sight, are they suddenly worried about the dollars and cents?

We can only hope that actual truth and justice will prevail.

Thursday’s Quick Clicks…

Between Guilt and Innocence, an Evolution in Fire Science

From: The New York Times

A statue of a mythological Chinese supernatural beast called Hsieh-Chai, who was believed to have the ability to tell the guilty from the innocent by butting them, stands at the University of Pennsylvania Law School.

“Slow and painful has been man’s progress from magic to law,” a proverb inscribed on the base says.

Three men convicted of murder by arson for a 1980 fire in Brooklyn are likely to be exonerated on Wednesday. One served 33 years. Another went blind in prison. The third died there.

Their convictions started with righteous rage over the death of a mother and her five children in a fire on Sackett Street. The New York of the 1970s and early 1980s was in the grip of arson fever, with more than 9,000 fires set annually, mostly in the Bronx and Brooklyn. (There were about 2,500 serious fires of any kind in 2014.)

What carried the three men into prison was not reliable evidence of an intentionally set blaze, but rather an arson investigation that was more like shamanism than science, rooted in hunches and folklore and disconnected from the dynamics of actual fires. Like the comparisons of bite marks, hair and handwriting, it was a forensic practice that had the authority of white-coat laboratory science but virtually none of its rigor.

“People didn’t understand the behavior of fire then,” said John J. Lentini, the author of “Scientific Protocols for Fire Investigation.” His December 2014 report on the Sackett Street fire said the original determination of arson was incorrect.

“They saw fire burning at one side of the apartment and at the other side of the apartment, and less burning in the middle,” Mr. Lentini said. “The interpretation was there were two separate fires. That’s just wrong.”

Since 1980, he said, fire scientists have come to understand the phenomenon of flashover, in which the gases from the initial point of a fire heat up a room until the entire space ignites. “That’s when you go from a fire in the room to a room on fire,” he said. Because different parts of a room might burn at varying intensities, fire investigators often mistakenly believed there had been two or more places where the fire began, a strong sign of arson.

The Sackett Street case was reopened when one of the three men, Amaury Villalobos, wrote in 2012 to Adele Bernhard, a lawyer and professor who runs a legal clinic at New York Law School that represents a small number of people with claims of innocence that cannot be proved by DNA testing alone. She asked Mr. Lentini to examine the original evidence and testimony. His conclusion — later ratified by experts consulted by the Brooklyn district attorney’s office — was that the Sackett Street fire investigation was plagued by systemic problems common to that era, making its findings useless.

“Much of what was believed by well-meaning investigators was, unfortunately, false,” Mr. Lentini wrote. “If today’s standards and knowledge of fire dynamics were applied to this investigation, the results would have been significantly different.”

That meant the pursuit of an innocence claim for Mr. Villalobos and his co-defendants, William Vasquez and Raymond Mora, would not be based on attacking the work of a single rogue detective or prosecutor but on the flaws in widely used investigative techniques.

Ms. Bernhard and her students presented their reinvestigation to a review panel set up by the Brooklyn district attorney, Ken Thompson.

“This is a very different sort of case for Thompson,” Ms. Bernhard said. “We’re not tracking down a police officer known to take shortcuts. This is where you’re saying the science has changed so much, they would never have been put on a case like that. That’s a big step.”

The introduction of DNA testing has shown that many earlier forensic techniques were shoddy facsimiles of actual science. Results could not be replicated; there were no acknowledged error rates; often the same people did both the investigations and the laboratory work, meaning that tests were skewed to fit conclusions.

In a suspected arson case in Georgia, two laboratories said there was no evidence of an accelerant. Nevertheless, the prosecutor, Nancy Grace, now a television commentator, won a murder conviction by introducing evidence that a trained dog had sniffed accelerants at the scene. In overturning the conviction, the appellate judges were reminded of a practice in ancient India involving a donkey put in a darkened room. The defendant had to touch its tail. If the beast brayed, that meant the defendant was guilty.

“It was the first lie detector test,” Mr. Lentini said.

Wednesday’s Quick Clicks…

Clarence Moses-EL Conviction Vacated After 28 Years.

 

cmel

If there were ever a classic example of the lengths to which a prosecutor will go to preserve the “sanctity” of what they have to know is a wrongful conviction, this case is one of those examples.

See details of that case here from the Colorado Independent. There’s even an itemized list of the scummy, less-than-ethical things the police and the prosecution did to preserve this wrongful conviction for 28 years.