Author Archives: Martin Yant

Discovery rules in U.S. remain ‘a tangled mess’

Exonerations in cases like that of Michael Morton of Texas — who was freed in 2011 after DNA testing on evidence previously hidden by the prosecution identified another man as the killer of Morton’s wife — have demonstrated discovery’s crucial role in wrongful convictions. Despite some reforms to the discovery process in a few states, though, laws in most of America remain a tangled mess, according to The Crime Report. For every successful reform, Kate Pastor reports here, bills in other states die aborning.

Forcing forensic-science reforms hasn’t been easy

When the National Academy of Sciences issued a seminal report on the sad state of forensic science five years ago, many hoped it would quickly lead to reforms and fewer wrongful convictions. That hasn’t happened — at least so far.

In a comprehensive review here, Chemical & Engineering News reports that ”little has been done to shore up the discipline’s scientific base or to make sure that its methods don’t result in wrongful convictions. Quality standards for forensic laboratories remain inconsistent. And funding to implement improvements is scarce.”

Even worse, the journal says, some are beginning to wonder if much will be done in the new future without continued advocacy from reform-minded scientist and their allies. The fight is far from over.

Thanks to courts, police perjury remains major problem

According to an old lawyer joke, the best way to tell when a lawyer is lying is to look to see if his lips are moving. That rule seems to apply to cops on the witness stand, too. But “testilying” is no laughing matter. It is undoubtedly a significant factor in many wrongful convictions.

Proving it to the courts’ satisfaction, though, is another matter. As Radley Balko notes here, “The problem isn’t that cops aren’t capable of telling the truth. The problem is that the courts have treated cops as if they’re incapable of lying.”

Alan M. Dershowitz said the same thing in an op-ed in 1994. “Some judges refuse to close their eyes to perjury,” he wrote, “but they are the rare exception to the rule of blindness, deafness and muteness that guides the vast majority of judges and prosecutors.”

Balko argues that this could be changing, thanks to increasing prevalence of video cameras that catch cops in lies, as happened recently in a Chicago-area case. But until video cameras are everywhere, some cops will probably continue to lie as long as the courts allow them to get away with it.

Fingerprint identification based on flawed assumptions

From The (London) Telegraph

By Sarah Knapton, Science Correspondent

Fingerprint evidence linking criminals to crime scenes has played a fundamental role in convictions in Britain since the first forensic laboratory was set up in Scotland Yard in 1901.

But the basic assumption that everyone has a unique fingerprint from which they can be quickly identified through a computer database is flawed, an expert has claimed.
Mike Silverman, who introduced the first automated fingerprint detection system to the Metropolitan Police, claims that human error, partial prints and false positives mean that fingerprints evidence is not as reliable as is widely believed.

Nobody has yet proved that fingerprints are unique and families can share elements of the same pattern.

And there are other problems, such as scanning fingerprints of the elderly as their skin loses elasticity and in rare conditions leaves some people with smooth, featureless fingertips.

Mr Silverman, who was the Home Office’s first Forensic Science Regulator, said: “Essentially you can’t prove that no two fingerprints are the same. It’s improbable, but so is winning the lottery, and people do that every week.

“No two fingerprints are ever exactly alike in every detail, even two impressions recorded immediately after each other from the same finger.

“It requires an expert examiner to determine whether a print taken from crime scene and one taken from a subject are likely to have originated from the same finger.”
However there are numerous cases in which innocent people have been wrongly singled out by means of fingerprint evidence.

In 2004, Brandon Mayfield, was wrongly linked to the Madrid train bombings by FBI fingerprint experts in the United States.

Shirley McKie, a Scottish police officer, was wrongly accused of having been at a murder scene in 1997 after a print supposedly matching hers was found near the body.
“What both cases clearly demonstrate is that, despite the way fingerprint evidence is portrayed in the media, all comparisons ultimately involve some human element and, as a result, they are vulnerable to human error,” said Mr Silverman who has recently published his memoirs ‘Written in Blood’ and now works as a private forensic consultant.

“And the fingerprint often isn’t perfect, particularly at a crime scene. It might be dirty or smudged. There are all sorts of things that reduce the accuracy.
“I think it is important that juries are aware of this. Too often they see programmes like CSI and that raises their expectations. What you see on CSI or Silent Witness simply doesn’t exist.”

Unlike other forensic fields, such as DNA analysis, which give a statistical probability of a match, fingerprint examiners traditionally testify that the evidence constitutes either a 100 per cent certain match or a 100 per cent exclusion.
Previous studies have shown that that experts do not always make the same judgment on whether a print matches a mark at a crime scene, when presented with the same evidence twice.

A study by Southampton University found that two thirds of experts, who were unknowingly given the same sets of prints twice, came to a different conclusion on the second occasion.

It was Scottish surgeon Dr Henry Faulds who first discovered that fingerprints might be useful for identification purposes. He published a paper in the journal Nature in 1880 and offered the idea to the Met Police, but at the time the force was not interested.
Undeterred, Dr Faulds approached Charles Darwin who passed the concept on to his cousin Francis Galton. Galton published a book on the forensic science of fingerprints and claimed that the chance of two people having the same prints was about one in 64 million.
On the back of his work and later research Fingerprint Bureau was founded at Scotland Yard in 1901 and eventually the national Forensic Science Service (FSS) was founded with provided services to all UK forces.

However in 2010, the service was closed and forensic work is now carried out by the private sector, although the Met Police recently re-established its own lab.
Mr Silverman, whose opinion was sought on the murder cases of Damilola Taylor and Rachel Nickel, believes the closure of the FSS could lead to miscarriages of justice in the future.

“Police forces have to slash their budgets and the easy thing not to spend money on is forensic services,” he said.

“You have to ask yourself what price you put on justice.”

Three cities to start reviewing criminal-justice mistakes

It’s been a common refrain in the innocence movement that when an airliner crashes there is an intense investigation on how it happened to prevent similar crashes, but when a wrongful conviction occurs the criminal-justice system does nothing to prevent a recurrence.

Well, that’s about the change. According to The Crime Report, the major criminal-justice players in Philadelphia, Milwaukee and Baltimore have agreed to develop a system to review cases that went wrong or almost went wrong in an attempt to keep similar mistakes from happening again. Stephen Handelman writes about the project, which will be supported in part by the National Institute of Justice, here.

Are prosecutors’ conviction-integrity units the real deal?

Are prosecutors’ conviction-review or conviction-integrity units a sincere effort to right wrongs or an insincere attempt to cover up challenged cases with a heavy layer of whitewash? Hella Winston explores the issue in an excellent article for The Crime Report, which you will find here.

Interrogations may be getting worse instead of better

False confessions are a leading cause of wrongful convictions in the United States, and many of them are obtained by detectives using the pervasive Reid technique of interrogation. But if you think that law-enforcement officials are beginning to realize the inherent flaws of a system that gets people to confess to crimes they didn’t commit, guess again.

In a thought-provoking blog post here, forensic psychologist Karen Franklin says she is actually seeing Reid technique “taken to more and more extreme levels” because of American courts’ “tacit encouragement” of deceit and the watering down of Miranda rights.

Study shows how ‘mob journalism’ helps convict the innocent

“The media has won deserved credit for its role in exposing wrongful convictions,” The Crime Report says. “But there are many examples of compliant coverage of prosecutors and law enforcement authorities who rush to convict the innocent on flimsy or phony evidence.”

To prove its point, the web site has published a study by crime journalist David J. Krajicek that focuses on three examples — the 1949 case of Florida’s “Groveland Four”; the conviction of Kirk Bloodsworth in the 1985 rape and murder of a 9-year-old girl near Baltimore; and the conviction of Walter McMillian for the 1986 murder of a clerk in Monroeville, Ala.

All three cases are good examples of how the news media frequently follow — and sometimes lead — police and prosecutors down the rabbit hole of bias and tunnel vision. You can read the excellent study here.

Exonerations still exceedingly difficult to achieve

The National Registry of Exonerations’ announcement this week that 2013 was a record year for exonerations in the United States is an encouraging sign, as Nancy Petro reported here. The registry’s report also offers lots of good data, of which Phil Locke published a good analysis here, on which to base reforms.

But all this good news belies the fact that exonerations are still exceedingly difficult to achieve. And while the registry is correct in reporting that some law-enforcement agencies and prosecutors are more cooperative in identifying and correcting wrongful convictions, it’s important to note that is still the exception to the rule.

Most of that cooperation comes in cases in which DNA testing might provide definitive answers. But with the number of such cases waning as DNA testing becomes common during criminal investigations, innocence investigations are becoming harder as they move to cases without DNA, and they are often resisted by authorities with maddening arguments and stonewalling worthy of Richard Nixon.

But even when there is DNA to test, there is still resistance in some corners of the United States, as Andrew Cohen explains in The Atlantic. “There are … two relevant facts worth noting that are not synthesized into the exoneration report’s analysis,” Cohen says. “The first is that not all states are equal when it comes to prioritizing exonerations. Some simply care less about justice for the wrongfully convicted than others. … The second point that needs to be made in the shadow of the report is that some states today are moving against the flow. Lawmakers in at least two states, Alabama and Tennessee, are seriously considering measures that would tighten appellate deadlines in capital cases, making exonerations harder to achieve.”

Cohen’s sobering words, which you can read here, are a reminder that there is much work still to be done in the exoneration movement.

Chicago exonoree chooses hope over anger

The struggle to overcome a wrongful conviction doesn’t end with exoneration. Rebuilding a life interrupted by years of incarceration takes a lot of hard work. Nicole Harris, a client of the Northwestern University Center on Wrongful Convictions who falsely confessed to the murdering her 4-year-old son, is doing it the right way. Her effort is featured in this story on the front page of today’s Chicago Tribune.

By Duaa Eldeib, Tribune reporter
January 19, 2014

As she marks her 32nd birthday Sunday, Nicole Harris is navigating job interviews and graduate school applications. She’s discovering just how delicate the relationship between a mother and her teenage son can be. She is constantly on the hunt for a good book.

Yet still there are moments she yearns for the quiet of her prison cell.

Nine years ago, Harris was a young mother of two who’d overcome tremendous obstacles to earn a college degree. Her boys, Jaquari and Diante, were just 4 and 5, but she was already thinking about where she might someday send them to college.

Then Jaquari died. And she was convicted of killing him.

Harris spent almost eight years behind bars before an appeals court, raising serious questions about her conviction, reversed it. And on a bright winter day nearly a year ago, she was set free.

Continue reading

Satanic ritual abuse panic seems to be unraveling

Child-abuse hysteria has produced hundreds, if not thousands, of wrongful convictions over the past 30 years. One of the most virulent strains of this hysteria was the one that started it: Satanic ritual abuse. Linda Rodriguez McRobbie offers a hopeful update here that suggests that the last vestiges of this panic are unraveling. But immense damage was done, and if the lessons left behind aren’t learned, there will be more panics and more innocent people sent to prison for crimes they didn’t commit or that didn’t even occur.

Police chiefs lead effort to prevent wrongful convictions by altering investigative practices

By Spencer S. Hsu, Monday, December 2, 6:57 PM
The Washington Post

The nation’s police chiefs will call Tuesday for changes in the way they conduct investigations as a way to prevent wrongful convictions, including modifying eyewitness identification.

In a joint effort with the Justice Department and the Innocence Project, an advocacy group for prisoners seeking exoneration through DNA testing, the International Association of Chiefs of Police (IACP) will urge police departments nationwide to adopt new guidelines for conducting photo lineups, videotaping witness interviews and corroborating information from jailhouse informants, among 30 recommendations.

The group also calls for new tools to identify investigations at high risk of producing a wrongful arrest, as well as formalizing the way flawed cases are reviewed and the way assertions of innocence are investigated.

“At the end of the day, the goal is to reduce the number of persons who are wrongfully convicted,” said Walter A. McNeil, the police chief in Quincy, Fla., and past president of the chiefs association, which convened a national policy summit on wrongful convictions.

“What we are trying to say in this report is, it’s worth it for all of us, particularly law enforcement, to continue to evaluate, slow down, and get the right person,” McNeil said.

Legal experts said the findings, which were funded by the Justice Department’s Office of Justice Programs, mark a milestone in the deepening engagement by police and prosecutors in correcting breakdowns in the criminal justice system. Those errors have been exposed in recent years by advances in DNA profiling.

The findings also reflect a new emphasis by police on preventing mistakes from occurring, as well as a growing willingness to investigate past errors by adopting what the IACP called a “culture of openness” in rethinking how police analyze evidence and tackle problems such as investigative bias.

“We may appear to some to be strange bedfellows, but in fact we all support these reforms because they protect the innocent and enhance the ability of law enforcement to catch the guilty,” said Barry Scheck, co-founder of the Innocence Project.

Criminal prosecutions are handled overwhelmingly at the state and local level, and the IACP said its summit was the first national-level symposium on the subject to be led by law enforcement.

With 17,000 of its 22,000 members in the United States, the IACP brings an influential voice of police professionals to active debates over how police should ask eyewitnesses to identify suspects, for example, and how law enforcement should address past convictions that may have relied on flawed forensic or other evidence.

Despite their strong impact on juries, witness recollections are wrong about one-third of the time, researchers have found. Eyewitness misidentifications played a role in the majority of more than 300 DNA exonerations since 1989.

Many police agencies have moved to reduce potential sources of errors or bias, such as by conducting blind lineups in which the police officer shows a witness photographs but does not know who the suspect is.

In addition, research indicates that showing photographs of possible suspects one at a time, or “sequentially,” rather than in a group, reduces misidentifications. But some police agencies have balked, worrying that in practice it may confuse witnesses or create investigative problems.

The IACP acknowledged both viewpoints, calling for more research even as it urged agencies not to wait to adopt blind and sequential lineups.

Nearly 10 states have implemented such policies, as have police departments serving large cities, including Dallas and Baltimore.

More than 20 states record interrogations statewide, and another 850 law enforcement agencies voluntarily do so.

With several states and the FBI grappling with how to address convictions that may have relied on flawed forensic evidence, the IACP said it and the Justice Department should provide tools to help agencies investigate claims of innocence and resolve wrongful convictions.

“Any time new information comes forward that could indicate the need for redirection, justice system officials across the continuum must welcome and carefully examine that information,” the IACP said in its report.

Idaho Innocence Project puts new cases on hold after losing grant

BOISE, Idaho (KBOI) – The Idaho Innocence Project won’t take on any new cases after its major funding source dried up, according to Director Greg Hampikian.

The Boise-based group uses DNA evidence to help free the wrongfully convicted. Hampikian and his team played a role in the acquittal of Amanda Knox, and they are currently working two cases in Idaho.

“I can’t commit resources we don’t have, so people are writing us, and I’m having to tell them we’re on hold right now,” Hampikian said. “We’re waiting to see where we end up.”

Hampikian said 100 prisoners or so write each year, but the Idaho Innocence Project can’t help them now that its grant proposal was rejected.

The U.S. Department of Justice didn’t award the group a two-year $220,000 grant. Hampikian volunteers, but the Project counted on that money the past four years to pay legal help.

“So who does it affect? It affects the families, and you don’t know if you’re going to be one of these families one day where one of your family members is accused and surprisingly convicted of something they didn’t do,” said Hampikian, who also plays a role in trials around the world.

Knox was accused of killing her roommate in Italy in 2007. Hampikian looked at the DNA evidence and helped her defense team. An Italian jury overturned the 2009 murder conviction. New evidence is expected Wednesday after the Italian Supreme Court demanded a retrial.

“That knife has no reliable evidence that it was used in the murder,” Hampikian said. “It is a kitchen knife that was probably used for cooking the night of the murder and had nothing to do with it.”

Hampikian said he is now scrambling to raise money to continue his work.

“I’d rather work on cases, I’d rather to do what only I can do. Somebody else can probably do this, but I’m the volunteer director, and I’m the only one left. The captain’s left on the ship, I have to call people.”

The Idaho Innocence Project has enough money to finish its two Idaho cases, according to Hampikian, but he’s already turning away others asking for help until he can come up with the money.

Blog editors discuss wrongful convictions in China

Wrongful Convictions Blog editor Mark Godsey, left, and contributing editor Nancy Petro, second from right, are shown visting the Great Wall of China on Saturday. They are joined by Mark’s wife, defense attorney Michelle Berry Godsey, and Nancy’s husband, former Ohio attorney general Jim Petro. All four were invited to China to discuss wrongful convictions throughout the world.

China

Study examines rape, race and wrongful convictions

Most rapes are intraracial. The vast majority of white victims are assaulted by white perpetrators and black victims are usually assaulted by blacks.

But when the victim is white and the perpetrator is black, the risk of a wrongful conviction rises dramatically. An informative new article here by researchers Matthew B. Johnson, Shakina Griffith and Carlene Y. Barnaby at the John Jay College of Criminal Justice sheds light on this problem and what can be done about it.

Law enforcement joining the innocence cause

The Crime Report says some surprising new allies have emerged in the legal battles to free individuals wrongfully convicted of crimes in the United States. In an article here, Alexandra Gross and Maurice Possley say police officers and prosecutors are starting to play critical roles in securing exonerations.

Obama’s poor clemency record under attack

The ultimate safety valve for miscarriages of justice in the United States, be they wrongful convictions or unjust sentences, is the clemency process. But as politicians escalated the ”war on crime” over the past 40 years, the number of convicts receiving pardons or commuted sentences at both the state and federal level has plummeted.

President Barack Obama’s promise to change the skyrocketing incarceration rate during his 2008 campaign never materialized in his first term. While the recent promise of Obama’s attorney general, Eric Holder, to reduce the federal incarceration rate by not pursuing as many stiff sentences offers hope, Radley Balko notes here that Obama could easily help correct injustices by issuing commutations, but his record is depressingly dismal.

Balko quotes a ProPublica report that while an applicant for commutation’s chance for success under Presidents Reagan and Clinton was 1 in 100, it fell to 1 in 1,000 under President George W. Bush and is only slightly less than 1 in 5,000 under Obama. It may be time for Obama to walk the walk and not just talk the talk.

Civil-forfeiture laws cost innocent as well as guilty

Presumption of innocence is thrown out the window in U.S. courts when it comes to civil-forfeiture procedures. ProPublica, a non-profit investigative organization, reports here that seizures of crime-related property have become big business for police agencies throughout the country.

ProPublica estimates that billions of dollars in cars, cash, real estate and other assets are seized every year throiugh civil forfeitures. Much of it comes from people who weren’t charged with a crime, let alone convicted of one.

The New Yorker weighs in on the same topic in a compelling article here that describes civil forfeiture as “the Guantanamo Bay of the legal system.”

The Untouchables: America’s misbehaving prosecutors, and the system that protects them

Radley Balko, a longtime critic of the American justice system, has just posted a lengthy article on prosecutorial misconduct here.

How sloppy fire investigations send innocents to prison

Excellent commentary from http://www.thecrimereport.com

By Paul Bieber

For George Souliotes, this 4th of July was an Independence Day like no other. It was his first full day of freedom, after 16 years behind bars in California for crimes he did not commit.

Seventeen hundred miles away in Texas, Ed Graf spent his 4th of July in the same manner he has for the past 27 years—an innocent man confined in a state prison. His celebration of freedom will have to wait.

George Souliotes and Ed Graf do not know each other, but they share an unenviable bond: they were both wrongfully convicted of arson and murder and were both sentenced to life without parole.

Souliotes was tried in Modesto, CA for a 1997 blaze in his rental property that killed a mother and her two young children. Graf went to court in Waco, TX for a 1986 fire in his backyard shed that killed his two step-sons. In each case an amateurish fire investigation quickly escalated into a full-fledged witch hunt.

Fire investigators testified with absolute certainty in both cases that deep charring, holes burned into the wooden floors and “pour patterns” could only have been caused by an ignitable liquid, such as gasoline or paint thinner, intentionally used to start the fire. They also testified that each fire burned “abnormally hot,” further suggesting to investigators that the fires were fueled by a liquid accelerant.

The forensic expert testimony in these cases has been shown to be fundamentally unreliable.

The 1992 publication of NFPA 921 Guide for Fire and Explosion Investigation warns investigators not to rely on burn pattern analysis as proof of the presence of an ignitable liquid. A 1997 study by the United States Fire Administration demonstrated that the suspicious burn patterns listed above are created in any fully involved compartment fire, regardless of ignitable liquids, and that the heat of a fully developed fire has nothing to do with the use of a liquid accelerant.

More recently, blind study research by the Arson Research Project has shown the accuracy of experienced fire investigators in determining the presence of a liquid accelerant under these circumstances to be no better than a random guess.

Unreliable burn pattern analysis was so prevalent in the 1980s and 1990s that the Texas Forensic Science Commission recently recommended that all arson convictions in Texas be reviewed in order to determine which of the convictions are based on unreliable forensic evidence. The Texas Innocence Project took up the call and in conjunction with the Texas State Fire Marshall’s Office has reviewed hundreds of the state’s arson convictions.

The review has narrowed the field to less than a dozen cases, among over a thousand Texas arson convictions, where the presence of unsound forensic fire science is mixed with strong claims of actual innocence.

While fire investigators across the country slowly came to grips with the reality that many previous conclusions might have landed innocent people in prison, the Souliotes and Graf cases moved through the crushingly slow process of appellate review.

With the tenacious efforts of the Northern California Innocence Project and pro bono attorneys, Souliotes’ case found its way through state and federal courts. It landed in an evidentiary hearing in front of U.S. Magistrate Judge Michael Seng, who concluded that “no reasonable jury would have found him guilty beyond a reasonable doubt.” In a confirming opinion, U.S. District Judge Anthony Ishii said that Souliotes had shown “actual innocence.”

Late last month, the independent Texas fire review panel convened by the State Fire Marshal’s Office concluded that the original determination of arson by Texas fire investigators in the case of Ed Graf was mistaken. Speaking of the Graf case, Texas State Fire Marshal Chris Connealy said the original investigators “failed to meet the present day standard of care.”

The Souliotes and Graf cases represent far more than simply not meeting a basic standard of care. They represent a nationwide travesty: accidental fires continue to be misidentified as arson leading to wrongful convictions and at least one execution.

Convicted of arson and murder for the 1991 fire that killed his three young children in Corsicana, TX, Cameron Todd Willingham was executed in 2004. His conviction was based on the same discredited evidence present in the cases of Souliotes and Graf. Review of the Willingham case by the Texas Forensic Science Commission and independent experts has confirmed that the fire leading to his conviction was almost certainly accidental, not arson, and that the forensic determinations of the state’s experts were not based on science.

In the case of Willingham, sloppy fire science, mixed with a good dose of bias and speculation, led to the execution of an innocent man.

In spite of the presence of undisputedly flawed forensic evidence, a complete lack of reliable evidence to support a determination of arson, and strong showings of actual innocence, local prosecutors in California and Texas promised to go forward with retrials in both cases.

After protracted negotiations with Souliotes’ attorneys, on the eve of trial the Stanislaus County District Attorney agreed to drop the charges of arson and murder in exchange for a no-contest plea to involuntary manslaughter for failure to maintain the smoke detectors in the rental property where the fire occurred.

Under the terms of the plea, Souliotes did not admit guilt; but he did acknowledge that prosecutors had sufficient evidence to prove their allegation that the smoke detectors were not properly maintained.

The re-trial of Ed Graf is scheduled to begin in Waco in the coming weeks.

Two things must be done. First, charges should be dropped against Ed Graf and he should be immediately and unconditionally freed. Like George Souliotes, Ed Graf has been in prison for dozens of years for a crime that was never a crime at all.

Second, the same type of arson review conducted in Texas should be performed in arson cases nationally. The Texas Innocence Project and State Fire Marshal’s Office are proactive and forward thinking in their review of Texas’ arson convictions. Convictions outside of Texas deserve no less.

On Wednesday afternoon, July 3rd, George Souliotes walked through the lobby of the Stanislaus County jail towards the front doors that separated him from his first steps of freedom. After hugging his family and defense attorneys, while wiping tears from his eyes, he pointed through the glass of the front door.

“I see the sun,” he said. “It’s beautiful”.

It is time for Ed Graf and others languishing in prison on wrongful arson convictions to see the sun.

Paul Bieber is a private investigator specializing in indigent defense investigation and the founder and director of the Arson Research Project. He welcomes comments from readers