The BBC has put out an interesting article (by Rob Walker) on the problems of using accused/convicted persons as police informants. It focuses on US practice, specifically the plea bargain process and the cutting of prosecutorial deals. However, the article’s observations are also relevant for countries where accused persons may be “incentivised” to provide the police or prosecution with apparently useful information in exchange for a lower sentence. For example, 2012 amendments to Singapore’s Misuse of Drugs Act, which used to impose a mandatory death sentence for drug trafficking, now gives judges the discretion to impose life imprisonment instead of the death penalty if certain conditions are fulfilled. One of these conditions is that the Public Prosecutor “certifies to any court” that “in his determination” the accused person has “substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore”. In such situations, the accused person has an incentive to provide the police or prosecution with information even if he/she does not have any. To avoid wrongful convictions based on the manufacture of false information by accused persons, there needs to be clear regulations and an oversight system put in place. These should be accessible to those who may be wrongly accused, so as to enable their defence or requests for review, as well as the general public to ensure continued confidence in the system.
On 11 March 2013, the Singapore Court of Appeal quashed the conviction of a death row inmate. Mervin Singh had been sentenced to death for drug trafficking by the lower court.
Singapore’s Misuse of Drugs Act presumes that a person is possesses a drug for the purpose of trafficking if he or she is found with certain drugs above specified amounts. The said person is then required to rebut this presumption. Singh argued that he had not known that the package he had been found with contained drugs. Rather, he believed that the package held contraband cigarettes. The Court of Appeal accepted Singh’s argument. Among others, the Court of Appeal cast doubt on the narcotics officer’s claims that he had seen Singh opening and looking into the package, highlighting inconsistencies between the officer’s earlier statement and his testimony at trial.
The court also noted that Singh’s DNA had not been found on the box, the newspaper sheets, or the plastic bags containing the drugs.
The important role played by DNA testing in this case is noteworthy. Many studies show how the practice of DNA testing has led to the prevention and overturning of wrongful convictions in many countries. Singh was fortunate on many counts. He was lucky that there was evidence that could be subjected to DNA testing. He was lucky that DNA analysis was conducted. And he was lucky that the Court of Appeal gave sufficient weight to the results of this analysis. This raises a number of points: 1. Sometimes a piece of evidence that could be submitted for DNA analysis may not be available at the time of trial or the said evidence, though available, may not have been tested due to unintentional oversight or mistakes made in good faith; 2. It is necessary to ensure that there are laws or regulations in place that provide for the preservation of evidence, access to evidence, and DNA testing; 3. There should be accessible and transparent procedures that enable convicted persons and their legal representatives to request access to preserved evidence or submit new evidence for DNA testing at a post-conviction stage.
Following ongoing debates on the Daniel Taylor case, a write-up in Time by Adam Cohen (“Why Innocent Men Make False Confessions”, 11 February 2013) observes how false confessions are not an “strange anomaly”. Refers to recent studies confirming that they are among the common causes of wrongful convictions and usually involve young, uneducated, or mentally disabled accused persons who are frightened, unfamiliar with the criminal justice system, and often subject to police manipulation or pressure. Refers to documentaries on false confessions and wrongful convictions: West of Memphis and Central Park Five.
There is an interesting write-up in The Economist (“Japan’s Prisons: Eastern Porridge”, 23 February 2013) that examines the role of confessions and police interrogations in Japan’s criminal justice system, among others. Here is an excerpt:
“Criminal courts in Japan have long relied heavily on confessions for proof of guilt. Though the accused have a right to silence, failure to admit a crime is considered bad sport. Besides, police have strong incentives to extract a confession and, with up to 23 days to interrogate a suspect, the blunt tools to do so, as a stream of disturbing incidents has shown. Detectives tracking down an anonymous hacker extracted separate confessions from four innocent people before being forced in December into a humiliating apology. Court conviction rates are over 99%.”
Nancy Petro recently blogged here about the exoneration of Jabbar Collins, who is now bringing a civil suit against the City of Brooklyn and individual prosecutorial staff for misconduct in his case.
The year of 2012 saw the discovery of additional cases of misconduct involving same district attorney’s office, leading to the exoneration of Ronald Bozeman, Lawrence Williams, and Darrell Dula in three different criminal cases.
All three spent 10 months to 2 years in jail due to governmental misconduct before being released for crimes they did not commit. Read more about them here, here, and here.
The Singapore High Court has decided that it will review a 2011 conviction on rape and aggravated outrage of modesty based on new medical evidence produced by the convicted person to show that he suffered from erectile dysfunction at the time of the 2006 offences.
Read more about the case here:
Debates about making pro bono compulsory for lawyers continue in Singapore. Under the new proposed scheme, lawyers are required to do 16 hours of pro bono each year. Some lawyers are supportive, but many are unhappy with being “forced” to do pro bono.
The debates go essentially to what it means to be a lawyer. Qualified lawyers hold resources and skills which are in limited and controlled supply, but which are necessary for ordinary people to access the essential public good of justice. Due to the scarce and essential nature of lawyering skills, it is possible to see members of the legal profession as holding a limited form of stewardship over their resources. Such a stewardship would require them to make their resources available, in a reasonable and non-disruptive manner, to the community for public purposes.
More importantly, there is the deeper question of whether the burden of providing the lawyering skills and human resources necessary for legal aid, particularly criminal legal aid, should be shouldered by private lawyers alone. Statistics show that more than one-third of criminal defendants claiming trial do not have legal representation. Currently, the government provides funding for the Legal Assistance Scheme for Capital Offender (LASCO), which applies to capital cases, and the Criminal Legal Aid Scheme (CLAS), which is run by the Law Society of Singapore. These schemes assign private lawyers to criminal cases. If we as a society believe that justice is a public good accessible to all, the pursuit of accessible justice cannot be left primarily to private enterprise. This is especially important given the fact that poor lawyering is widely acknowledged as one of the reasons for wrongful convictions. If justice is a public good, access to quality lawyering needs to be more strongly guaranteed by the State as society’s ultimate guarantor of public goods. It is time for the Singapore State to establish an Office of Public Defence to complement the pro bono efforts of private lawyers in Singapore.
The Singapore High Court has quashed the drunk-driving conviction of Daniel Au on the basis that he had fallen into a drunken sleep while the car was parked rather than driving it while drunk. Mr Au was earlier punished with a two-week jail sentence, a driving ban, and a fine. He had appealed his conviction while serving his jail sentence, which was then quashed by the High Court. It has been reported that his new lawyer, Mr Peter Fernando, argued during appeal that the district judge who had sentenced his client had not “indicated that there was any evidence to show he had driven under the influence of alcohol or posed a risk to other road users.” Mr Au, who is to have his fine refunded and his driving license restored, is also reported to have said that his time spent in jail was “not easy”.
The Singapore High Court has ordered a review of a 2011 conviction against C. Bala Murugan for the offences of rape and aggravated outrage of modesty based on new medical evidence produced by the convicted person to show that he suffered from erectile dysfunction at the time of the 2006 offences.
This is a slightly delayed post on an important 2011 decision by the Singapore Court of Appeal which addresses the duties of investigators and prosecutors, and which will have important implications on the prevention of wrongful convictions.
In the case of Muhammad bin Kadar and another v Public Prosecutor  SGCA 32, the Singapore Court of Appeal overturned the conviction of one of the accused, Ismil Kadar. Among others, the Court found that the investigator had failed to observe legal and administrative procedure without good reason when recording Ismil’s statements.
The Court was also critical of the Prosecution’s conduct, noting that it had failed to provide “vital” pieces of evidence to the Defence and the Court in a timely manner. It highlighted the important role played by the Prosecution:
“[…] the duty of the Prosecution is not to secure a conviction at all costs. Rather, the Prosecution owes a duty to the court and to the wider public to ensure that only the guilty are convicted, and that all relevant material is placed before the court to assist it in its determination of the truth.”
At the proposal of the Singapore Institute of Legal Education, Singapore’s two law schools will establish mandatory pro bono programmes for undergraduate law students. The programmes are to start from 2013.
In his 2012 speech during the opening of the legal year, the then Singapore Chief Justice called on more lawyers to take on pro bono cases. Noting that such a commitment to pro bono can be nurtured, it is in this spirit that Singapore’s future lawyers will be exposed to pro bono work during their student days.
In Singapore, the State does not guarantee across-the-board free legal representation in criminal cases for indigent persons. An exception to this is the Legal Assistance Scheme for Capital Offenders (LASCO) run by the Supreme Court Registry which ensures those charged with a capital offence access to assigned lawyers. This makes access to high quality pro bono all the more important in Singapore. Currently, Singapore lawyers provide pro bono for criminal cases via the Law Society’s Criminal Legal Aid Scheme and the Association of Criminal Lawyers of Singapore.
Linked to Kana Sasakura’s earlier posts on how Japan has implemented the video recording of interrogations, the same subject has been recently raised in Malaysia and Singapore, though in response to different events.
In Malaysia, a commitment has been made to equip all offices of the Malaysian Anti-Corruption Commission (MACC) offices with Video Interview Rooms to facilitate the recording of suspect and witness interviews (story here). This commitment was undertaken against serious recent allegations of abuse, and aims to boost public confidence in the MACC (story here).
In Singapore, the issue was raised and discussed during the 2009 review of the Criminal Procedure Code. It resurfaced again in 2011, after a Court of Appeal acquittal in which the court noted that the investigator concerned had acted irregularly when taking the accused person’s statement. For now, the government has decided not to implement video recording as this “would not be really effective” in preventing coercive statements (story here). Singapore criminal defence lawyers have advocated for such video recording, arguing that this will, among others, protect “the police against wild accusations” (story here).
Effectiveness, cost, and logistics are relevant and important considerations when deciding whether to implement a criminal justice measure, but they should not be the only considerations. This is because criminal justice involves the use of coercive force against individuals by the State, a State that is also a fiduciary of the public’s trust. It is therefore important for the State to be able to justify the use of such coercive force to its public. A relevant and important justification, which is increasingly reflected in the public debates of both countries, is the transparency and fairness with which the State administers the criminal justice process. For some countries, the estimated effectiveness of certain criminal justice measures may not make their cost or implementation realistic. For other first-world countries, the impact of such cost may be less dire. Video recording will further level the playing field between the accused and the prosecution, and it will ensure a continued public confidence in the system, which is in fact what the MACC hopes its VIRs will do in Malaysia. More importantly, as observed by Sunil Sudheesan, a prominent criminal defence lawyer in Singapore, such video recording will benefit law enforcement authorities by protecting its investigators against “wild accusations” (see story).
Senior officials from ASEAN countries have just concluded a meeting in Singapore on the trafficking of persons (story here). According to the official press release, this meeting focused on “improving communications and cooperation” (story here); this is consistent with ASEAN’s traditional focus on technical knowledge-sharing and skills exchange in the area of police cooperation. However, it is noteworthy to recall that during its last 2011 meeting, ASEANAPOL had adopted a Joint Communique that expressed a commitment to the idea of police “professionalism” (story here). Such shared baseline values will become increasingly important as ASEAN countries consolidate their rule of law efforts, and will go towards improving policing standards and the prevention of wrongful convictions.
A common cause of wrongful convictions is the problem of false confessions, which may result from improper police conduct. Earlier this year, Indonesian Police Watch highlighted the need to improve Indonesian police recruitment and training to prevent police misconduct (story here). This is particularly relevant given recent allegations of false confessions involving police physical abuse in Indonesia (story here).
The idea of improper police conduct popularly evokes images of horrific police abuse or torture. This is not necessarily so. In two recent cases, the Singapore Court of Appeal criticised the police for improprieties that did not involve physical force (story here). An arrested person encounters police investigators backed by the power and authority of the State. In light of such power dynamics, many may falsely confess when pressured, even when the pressure exerted does not involve force or abuse, and even when such pressure is not malicious or intentional.
It is therefore important for ASEAN and its member countries to further develop this idea of “professionalism” in cultivating, or further strengthening, a respect among police forces for those they investigate as well as those they protect.
Edward Lee Elmore was convicted for the murder of an elderly widow, and has spent 30 years on South Carolina’s death row. His lawyers have revealed how primary evidence (hair found on the victim and said to be Elmore’s) had been tampered with by investigators, and later concealed by the state officials. This evidence had been ‘lost’. When found and retested, the hair was proven not to be Elmore’s. A retrial was ordered. However, in response to a prosecutorial plea deal, Elmore has pled guilty in exchange for his freedom.
Elmore has been set free, but the state’s conduct in this entire case (even the plea deal itself) leaves one with a strong sense of discomfort.
Research done by Neil Brewer (Flinders University, Australia) shows that accurate witness identifications are made within a shorter time compared to inaccurate identifications. Brewer suggests a new type of police line-up where witnesses are asked to identify suspects within a particular time period, instead of the usual line-up process during which witnesses are given time to think over their decisions.
For the science behind this:
In the Philippines, Susan Zulueta has been imprisoned for 18 years for a minor violation of vagrancy which carries a maximum penalty of only 30 days.
She is not alone. Results of an inspection conducted by the Manila Regional Trial Court show that three are many other prisoners, like Susan, who have been detained long after the termination of their sentences in the Manila City Jail and Manila Youth Reception Centre.
The question now is whether these prisoners will receive any reparation for time spent behind bars.
It is often thought that if one is truly innocent, one has nothing to fear from the legal process. An innocent accused only needs to tell his or her side of the story truthfully. Legal representation may not be necessary. This is not true. Many confess to crimes they did not commit, many are confused by the unfamiliar legal process, and mistakes may be made during investigations.
In Malaysia and Singapore, there has been increased debate on pro bono and criminal legal representation. Presently, both authorities provide criminal legal representation for capital cases. For other offences, legal aid is provided through pro bono schemes run by the legal bar and lawyers. The Malaysian government is working on a general criminal legal aid plan, and Singapore’s leaders have recently emphasised the need to promote pro bono work among lawyers.
Such an emphasis on pro bono is inspiring; it reflects a commitment to the less fortunate in society. However, it may also be time to consider the need for State-run or State-funded criminal legal aid schemes. Access to criminal legal representation is too important to be left to self-help or private initiatives alone. Due to the potentially serious consequences and social stigma resulting from a criminal conviction, the State should serve as guarantor of an accused person’s right to legal representation in all criminal matters. In doing so, the State sends the message that it stands alongside the accused person, even as it calls the latter to account.
Mainali was convicted and is serving time in Japan for a 1997 robbery-murder. His lawyers have recently submitted proof that the DNA samples taken from the murder victim’s clothes do not in fact match Mainali’s. Mainali has consistently protested his … Continue reading
In January 2012, the Singapore Attorney General’s Chambers (AGC) issued a media release acknowledging the occurence of faulty DNA-testing at the Health Sciences Authority. This has led to public debate on post-conviction DNA-testing. While the governmental agencies involved have proactively … Continue reading