Author Archives: Phil Locke

DA to Appeal Shaken Baby Conviction Reversal

We have previously reported on the Reneé Bailey case here.

Reneé Bailey, a day care provider in Greece, New York, was convicted in 2001 of shaking 2½ year old Brittney Sheets to death.  She was confined in prison until NY State Supreme Court Justice James Piampiano granted an evidentiary hearing in the case to consider the new scientific findings regarding SBS.  She was released without bail in December, 2014, and her conviction was reversed; the first SBS conviction reversal in New York state.  See the Rochester Democrat & Chronicle story here.

Now, in a recent announcement, the Monroe County, NY District Attorney, Sandra Doorley, has declared her intention to appeal the conviction reversal.

See that Rochester Democrat & Chronicle story here.

While this is certainly not good news for Ms. Bailey, who has already served 13 years in prison, there could be a silver lining to this ominous dark cloud. If the conviction reversal is upheld on appeal, this will establish some substantial legal precedent in favor of true science, rather than outdated medical dogma, in the evaluation and disposition of SBS cases.

Stay tuned.

Wrongly Convicted NY Man Dies 4 Months After $7.5M Compensation

Dan Gristwood was convicted in 1996 of attempted murder for beating his wife with a hammer.  He signed a confession, that he did not write, after 16 hours of interrogation by the NY State Police.

In 2003, the real attacker, Mastho Davis, came forward and confessed. Gristwood was released in 2005, and ultimately awarded $7.5M for his nine years of wrongful incarceration.

Sadly, on January 3, 2015, four months after receiving payment, Dan Gristwood died from lung cancer.  See the ABC News story here.

The syracuse.com story about the case here is definitely worth a read, and reads like a script for the prototypical coerced confession.

In light of all the recent public – and police – furor about police conduct, and how they relate to the community, and how they should be respected, I can do naught but shake my head.  When the police do stuff like this, how can they claim any high ground in this discussion?  Dan Gristwood, after his release, said he thought the problem was a “few bad apples.”  That may very well be so, but guess what? Those “few” bad apples make the whole barrel stink.  And this problem belongs to the police – not the public.

Radley Balko’s Predictions for Civil Liberties in 2015

I suspect that most of the readers who tune in to this blog are familiar with Radley Balko, who writes for the Washington Post.  He has been writing about justice system issues for a number of years, and has authored the books Rise of the Warrior Cop – The Militarization of America’s Police Forces and Overkill: The Rise of Paramilitary Police Raids in America.

He has just issued his 2015 predictions for civil liberties in the US.  You might ask why civil liberties are being covered in the Wrongful Convictions Blog.  But I submit – wrongful conviction and wrongful incarceration (and, most of all, wrongful execution) are the ultimate civil rights violations.

His predictions are sobering – SOBERING – at best.  You can read them here: Horrifying Civil Liberties Predictions for 2015.

I encourage you to read all the way through to the end.  But if you find yourself running short of time, you HAVE to skip to the last paragraph.

Police Want to Revoke Exoneree Bennie Starks’ Certificate of Innocence

Bennie Starks was released from prison in 2006, after serving 20 years for a rape that DNA proved he did not commit.  He was fully exonerated in 2013, and was granted a Certificate of Innocence by the court.

Starks is now suing the Waukegan, IL police department and the forensic experts who falsely testified against him.  As a consequence of this law suit, the Waukegan police are trying to have Starks’ Certificate of Innocence revoked. Their fear is that the Certificate of Innocence will be a deciding factor in Starks’ civil law suit for compensation.

Dr. C. Michael (Mike) Bowers is a California dentist and enlightened forensic odontologist. He also edits a blog called Forensics in Focus.  Dr. Bowers was involved in the exoneration of Bennie Starks, and has posted his comments about this on his blog here.

Another Shaken Baby Syndrome Acquittal

An Iowa District Judge has dismissed the case against Peter Ranke, who was accused of injuring his 3-week old baby by shaking.  And further, the judge sharply criticized the diagnosing doctor for mishandling the investigation into the child’s injuries

This case highlights the proclivity of child abuse pediatricians to jump immediately to an SBS diagnosis; without giving due consideration to possible differential diagnoses.

See the Iowa City Press-Citizen story here.

New York Law Journal – New Medical Knowledge Debunks Shaken Baby Conviction

Yesterday, Dec. 22, 2014, in a Monroe County, New York court, Rene’ Bailey was ordered released from prison without bail, and is expected to return home today.  See the Rochester Democrat and Chronicle story here.

We highlighted the Rene’ Bailey case in a previous WCB post, “Shaken Baby Syndrome ……. Progress for True Science?” last January here.

She was convicted in 2002 of murdering a 2½ year old child in her care, and the conviction was based upon medical testimony of “shaken baby syndrome.”

The actual cause of death is believed to have been a short fall from a piece of play equipment onto a carpeted garage floor.  The prosecution has yet to decide upon appeal or retrial.

See the New York Law Journal article here.     Note: accessing the article requires registration with the site.

Mississippi Supreme Court Overturns Conviction Involving Steven Hayne, Shaken Baby Syndrome

We’ve posted previously about Dr. Steven Hayne here.  Hayne was the now-discredited, long-time medical examiner for the state of Mississippi; notorious for his questionable forensic testimony.

Dr. Hayne’s cases keep unraveling; however, this case does not center specifically on Hayne’s credibility, but rather on the defendant’s being denied the ability to hire an expert to challenge Hayne’s credibility in court.

See the story by Radley Balko of the Washington Post here.

Center for Prosecutor Integrity’s 2015 Innocence Summit – Call for Session Proposals

CPI Logo

2015 Innocence Summit – Invitation for Workshop Proposals

Crowne Plaza Hotel, Arlington, Virginia              June 12-13, 2015

 The Center for Prosecutor Integrity (CPI) is announcing its Invitation for Workshop Proposals for the 2015 Innocence Summit, themed “Forging Best Practices for Innocence Reform.” CPI invites individuals and organizations throughout the criminal legal system to submit a proposal.

Workshops are designed to educate attendees on issues of substantive law and practical interest. Recent research findings, program descriptions, case studies, legal analyses, advocacy strategies, and innovative solutions are all welcome.

Proposals must include the following:

  • Workshop title
  • Three learning objectives
  • Description of the workshop content (maximum 500 words)
  • Presenter biography (maximum 250 words)

Proposals are welcome from a variety of presenters and using a variety of presentation formats. Workshops will be 60 minutes in length.

Proposals should be submitted here: summit@prosecutorintegrity.org. Applications are due no later than Friday, January 16th, 2015.

Applicants will be notified whether their proposal has been selected by February 20th. Presenters are responsible for their own conference registration, travel, and lodging expenses. Further information about the Innocence Summit can be found here: http://www.prosecutorintegrity.org/summit/2015-3/

Last year’s Innocence Summit was a great success, and we invite you to participate in this exciting opportunity to advance best practices for innocence reform!

If you have any questions, contact Gina Lauterio, CPI Program Director, at summit@prosecutorintegrity.org .

Thank you,

Gina R. Lauterio Esq., Program Director, Center for Prosecutor Integrity (CPI)

P.O. Box 1221, Rockville, MD 20849

Office: 301-801-0608, Cell: 908-783-3542

Email: glauterio@prosecutorintegrity.orgInternet: www.prosecutorintegrity.org

The Center for Prosecutor Integrity, a 501(c)3 organization, works toward preserving the presumption of innocence, assuring equal treatment under the law, and ending wrongful convictions.

A Word About Conviction Integrity Units

There has been a reasonable amount of fanfare recently about the establishment of “conviction integrity units.”  See Mark Godsey’s December 11 WCB post, “Center for Prosecutor Integrity Surveys Rise of Conviction Integrity Units”, here.

We can do nothing but applaud these efforts, but there is one aspect of these units that troubles me.  They are all totally contained within the prosecutor’s office.  Does anyone else think this presents an inherent conflict of interest?  My suspicion is that, because of increasing publicity about wrongful convictions, prosecutors are establishing these things to politically bolster their public image. Call me cynical – and we should welcome every step toward true justice – but I tend to see a fox guarding the hen house and a wolf in sheep’s clothing.  Is there any requirement that all proceedings of these units be public record?

My belief is that the model for how these units should be set up is the North Carolina Innocence Inquiry Commission, which has been in operation since 2007.  What I think is notable here is the composition of the commission: the members include a Superior Court Judge, a Prosecuting Attorney, a Defense Attorney, a Victim Advocate, a Member of the Public, a Sheriff, and two Discretionary members.  This shows a reasoned effort to endow the commission with objectivity.

In a very recent development, the Innocence Project of New Orleans has announced that it is partnering with the Orleans district attorney’s office to establish a joint “conviction review project.” See the IPNO announcement here. This is a big deal, and will bear watching.

Appeals Court Dismisses Debra Milke Murder Charges

We have previously posted about the Debra Milke case here and here.

Milke was originally convicted of murder for having her 4-year-old son killed. The conviction rested upon the testimony of a rogue cop, who claims she confessed to him, although there is no documented record of that confession, and Milke denies it ever happened. This officer had a history of substantial misconduct, and that record was withheld from the defense.

In a ruling just today – citing “egregious prosecutorial misconduct,” the Arizona Court of Appeals on Thursday ordered a Maricopa County Superior Court judge to dismiss murder charges against Debra Milke with prejudice, meaning they cannot be brought again.

See the azcentral story here.

Texas Will Execute Scott Panetti Tomorrow

Unless the courts intervene, Texas tomorrow will execute a severely mentally ill man, Scott Panetti. If that happens, Execution Watch will broadcast coverage and analysis of the state killing, which has drawn international condemnation.

RADIO SHOW:  Execution Watch, Wednesday, Dec. 3, 2014, 6-7 PM Central. Unless a stay is issued, we’ll broadcast live on:  KPFT FM, Houston 90.1, and Online, http://executionwatch.org > Listen

 TEXAS PLANS TO EXECUTE SCOTT PANETTI, brother of Execution Watch theme-song composer and performer Victoria Panetti. He was convicted in the slaying of his in-laws in Fredericksburg, Texas. Panetti, who suffers from schizophrenia, told police his alter ego, Sarge, committed the slayings. A previous execution date was put off by the U.S. Supreme Court, though the justices refused last month to hear his latest appeal. Panetti was allowed to represent himself at trial, wearing a purple cowboy outfit and calling witnesses including John F. Kennedy and Jesus Christ.

You may want to read the CNN story by Ron Powers, The Atrocity of Texas Killing a Mentally Ill Man, here.

You can also read the TIME article by Josh Sanburn here.

And the HuffPost story by Amanda Terkel here.

Plea Bargaining – An Effective Tool for Prosecutorial Abuse of Power

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                                                                                                        (Graphic:  The Veritas Initiative)

 

“97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas.” (USSC, Missouri vs. Frye, 2012)

Think about that for a minute — 19 out of 20 criminal cases never-go-to-trial.

These cases are disposed of through a guilty plea that resulted from a plea agreement.  The defendant never gets a trial, and goes directly to jail.

It’s called “plea bargaining,” but there is little-to-no actual bargaining that takes place.  A plea offer can be made even before the case goes to a grand jury, and the defendant has no idea how strong, or weak, the prosecutor’s case might be. The prosecutor has a very, very long list of often-overlapping charges to pick from that can be “stacked” to build a breathtakingly long anticipated sentence, which he can use to “bargain” (read threaten) with the defendant.  And the ability to “stack” is further augmented for charges that carry mandatory minimum sentences.  It’s pretty much a “take it or leave it” deal.  The ONLY bargaining power the defendant has is to refuse the plea offer, forcing the prosecutor to take the case to trial.  This is the genesis of the so-called “trial penalty,” which has been well covered on this blog here and here.  The defendant can take whatever the prosecutor offers, or expose himself to an exceedingly long sentence at trial.

In accepting a plea agreement, the defendant obviously gives up his constitutional right to a jury trial, but he may also have to give up his right to appeal, or to file civil suit, or to even talk about the case.  And then once convicted of a felony, there is a whole list of other collateral consequences as well.

Amelia Whaley is a JD candidate at the Duke University School of Law.  While working as an intern for the Center for Prosecutor Integrity, she wrote a paper summarizing the practice of plea bargaining as it exists today in the US.  I think it is just excellent, and is the best overall synopsis of plea bargaining I have seen. If you want to understand what plea bargaining is all about, and how it really works, please read Ms. Whaley’s paper here:  (paper temporarily taken down for edit by author)

If you’re interested in a little further reading, this article by Timothy Lynch at the Cato Institute, Cato – Plea Bargains, covers the 1978 US Supreme Court case (Bordenkircher v. Hayes) that established the precedent for plea bargaining – a case in which a man wound up in prison for life – for passing a bad $88 check.

Is Texas Going to Execute Another Innocent Person?

If you have been paying attention at all, you know that the Texas death penalty machine has been operating at full tilt – 508 executions since 1982, with 16 in just 2013.  This includes the execution of Cameron Todd Willingham, and it had become abundantly clear, even before his execution, that Willingham was actually innocent.

Texas is now getting ready to execute Rodney Reed for a murder that it is likely somebody else committed.  This could be confirmed by simple DNA testing of items from the crime scene, and has been requested by his attorney and The Innocence Project.  But the state of Texas has steadfastly refused to do the testing, and in a hearing held just last Tuesday, a Texas judge has ruled that no further DNA testing is warranted.  See the report on that hearing by The Intercept here.

CNN has posted a story by Dan Simon about the case, and you can read that story here.

This from the CNN story:

“Why on earth, one wonders, would Texas battle fiercely against conducting the testing? Would it be naive to propose the state should welcome it?

The answer cannot be the meager costs of running the tests or the negligible time they would take to run. Nor could the state claim to be acting out of respect for the victim’s loved ones — a dubious justification from the outset — given that numerous members of her (the victim’s) family are campaigning publicly on Reed’s behalf.

The best explanation for the state’s aversion to the testing may be the dread of learning the truth. The prospect of finding that Reed is innocent would deliver a resounding condemnation of the state’s criminal justice process — its detectives, prosecutors, defense attorneys, judges, jurors and appellate courts.”

There is significant case detail in the original story by The Intercept, which you can read here.

The Marshall Project – Journalism for Justice

It’s been my belief that the media have done a “pretty good” job of making us aware of some of the flaws in the justice system   Just as an example, I believe their coverage of exonerations has been quite good.  But I also believe that one of the major obstacles to justice system reform is that the typical John and Jane Q. Public (aka: the electorate) are of the opinion that the justice system is just fine the way it is. Now there is a new group, with a new website, that is dedicated to seeing that journalism is perhaps even more active in addressing the issues with the justice system. This is The Marshall Project.

The Marshall Project’s mission statement speaks for itself, and appears below. (The bolding emphasis is mine.)

Mission Statement

The Marshall Project is a nonprofit, nonpartisan news organization founded on two simple ideas:

1) There is a pressing national need for high-quality journalism about the American criminal justice system. The U.S. incarcerates more people than any country in the world. Spiraling costs, inhumane prison conditions, controversial drug laws, and concerns about systemic racial bias have contributed to a growing bipartisan consensus that our criminal justice system is in desperate need of reform.  The recent disruption in traditional media means that fewer institutions have the resources to take on complex issues such as criminal justice. The Marshall Project stands out against this landscape by investing in journalism on all aspects of our justice system. Our work will be shaped by accuracy, fairness, independence, and impartiality, with an emphasis on stories that have been underreported or misunderstood. We will partner with a broad array of media organizations to magnify our message, and our innovative website will serve as a dynamic hub for the most significant news and comment from the world of criminal justice.

2) With the growing awareness of the system’s failings, now is an opportune moment to amplify the national conversation about criminal justice. We believe that storytelling can be a powerful agent of social change. Our mission is to raise public awareness around issues of criminal justice and the possibility for reform. But while we are nonpartisan, we are not neutral. Our hope is that by bringing transparency to the systemic problems that plague our courts and prisons, we can help stimulate a national conversation about how best to reform our system of crime and punishment.

We certainly welcome their contribution, and I look forward to following them.

 

Ricky Jackson Prison Release Video

On Wednesday, November 19, Nancy Petro reported on this blog about the exoneration of Ricky Jackson after 39 years in prison.  See that story here.

CNN has posted a great video of his release from prison.  See the 2 minute CNN video here.

How the Courts Trap People Who Have Been Convicted by Bad Forensics

Radley Balko, investigative reporter for the Washington Post, has just published an article dealing with the justice system’s refusal/inability to deal appropriately with false, fake, unscientific, and discredited forensic evidence post conviction.

The focus is on a case that involves the infamous Dr. Steven Hayne, a now thoroughly discredited expert witness, who was sole medical examiner for the state of Mississippi for 20 years.  I urge you to read the entire article, but I’ve extracted a few particularly telling quotes:

•  “The courts and the people who operate in them seem to feel that the integrity of the system demands the preservation of verdicts.”

Addressing the fact that the body of scientific knowledge grows as a process, rather than an event; coupled with the legal time restrictions for introduction of new evidence  ————

•  “From the perspective of the wrongly convicted, you can see the trap here. File too soon, and the court may conclude that you haven’t presented enough evidence that the forensic theory upon which you were convicted has been discredited. If you then try to file more petitions as more evidence comes out to bolster your argument, you risk the court concluding that this is an  issue you’ve already raised, you lost, and you’re therefore barred from raising it again.”

•  “Koon was convicted due to testimony from an expert the court now admits isn’t credible. For the same court to nevertheless uphold his conviction because he missed a deadline is to keep him in prison on a technicality. It’s a cynical outcome that suggests the criminal justice system values process more than justice.”

Read the story by Radley Balko of the Washington Post here.

 

National Academy of Sciences Releases Landmark Report on Memory and Eyewitness Identification, Urges Reform of Police Identification Procedures

The Innocence Project has posted a notice on its website, with a link to a press release, about the recently released report by the Nation Academy of Sciences on memory and eyewitness identification.

From the report:  “the legal standard that most courts use regarding the admissibility of eyewitness testimony was established before most of the scientific research was conducted.”

The report endorses the following procedures for police lineups:

  • Blind Administration — Research shows that the risk of misidentification is sharply reduced if the police officer administering a photo or live lineup is not aware of who the suspect is. This prevents the witness from picking up intentional or unintentional clues from the officer conducting the lineup.
  • Confidence Statements — Immediately following a lineup, the eyewitness should be asked to describe in his or her own words how confident he or she is in the identification. As the report notes, the level of confidence a witness expresses at the time of trial is not a reliable predictor of accuracy. Having the witness describe their level of confidence at the time an identification is made will provide juries with a useful tool for judging the accuracy of the identification.
  • Instructions — The person viewing the lineup should be told that the perpetrator may not be in the lineup and that the investigation will continue regardless of whether the witness identifies a suspect.
  • Videotape the procedure — The report recommends that police electronically record the identification procedure to preserve a permanent record of the procedure.

Most recent data from the National Registry of Exonerations shows that for the 1,467 wrongful convictions currently in the registry, 35% had mistaken eyewitness identification as a contributing factor.

See the Innocence Project posting here.

Justice for Sale at the Highest Level?

Lobbyists Pursue State Attorneys General

From an October 28, 2014 NY Times story:

“Attorneys general are now the object of aggressive pursuit by lobbyists and lawyers who use campaign contributions, personal appeals at lavish corporate-sponsored conferences and other means to push them to drop investigations, change policies, negotiate favorable settlements or pressure federal regulators.”

See the NY Times article here.

This is yet another reason why ‘prosecutor’ should not be an elected political position.  It exposes the position to a host of pernicious incentives.

Jennifer Thompson Promotes the Justice for All Act

Jennifer Thompson has been featured on the WCB before.  She authored, along with Ronald Cotton, the book Picking Cotton.  Ms. Thompson incorrectly identified Ronald Cotton as the man who raped her, and Cotton spent 11 years in prison before DNA proved he was not guilty.  After his release, Ronald and Jennifer became friends, and co-authored the book, which chronicles the events of the rape and the wrongful conviction.

Ms. Thompson has recently written an op-ed for The Hill in support of reauthorization of the Justice for All Act to ensure that post-conviction DNA testing remains accessible.

See the original posting on The Hill here.  The text of her piece appears below:

October 26, 2014
Harm multiplies when the innocent are wrongly convicted
By Jennifer Thompson

In June of 1995, I found myself on a journey I never wanted, never asked for and never would have wished on another human being. I learned that the man whom I had identified in court as my rapist – the man whose face, breath and evilness I had dreamt about for 11 years – was innocent. The man whom I believed had destroyed me that night, who had stolen everything from me, and whom I hated with an all-consuming rage had lost 4000 days, eleven Christmases, eleven birthdays, and relationships with loved ones. And on June 30th of 1995, Ronald Cotton, the man I had hated and prayed for to die, walked out of prison a free and innocent man.

My rage and hatred had been misplaced. I was wrong. I had sent an innocent man to prison. A third of his life was over, and the shame, guilt and fear began to suffocate me. I had let down everyone — the police department, the district attorney’s office, the community, the other women who became victims of Bobby Poole, and especially Ronald Cotton and his family.

Several years after Ronald was freed, I received a phone call from Bobby Poole’s last victim. I remember hearing her story about what happened to her and realizing that we all had left him on the streets to commit further crimes – rapes — that we possibly could have prevented if Ronald had not been locked up for something he had never done. The knowledge that Mr. Poole had been left at liberty to hurt other women paralyzed me and sent me into a backward spiral that took years to recover from. This journey has taught me that the impact of wrongful convictions goes so much further than a victim and the wrongfully convicted. The pool of victims from 1984 was huge – me, Ron, the police department, our families, and the other women who became victims of Bobby Poole all suffered.

This case crystalized for me why it is so important to have laws in place that protect the innocent. Those laws would be important enough if they only protected the innocent, but they do so much more. They also protect the potential victims of real perpetrators, the families and children of the wrongfully convicted person, and – ultimately – the victim who learns the truth.

The Justice for All Act, which is up for reauthorization by Congress, allows men like Ronald to obtain post-conviction DNA testing that can lead to their freedom and to the conviction of the guilty. Without access to such testing, innocent men will remain in prison, real perpetrators will remain free, and new victims will have to experience the same horrors and indignities that I did. I urge Congress to pass the Justice For All Act now so that we can live in a world where the truly guilty are behind bars and the innocent are free.

Thompson is the co-author with Ronald Cotton of the book Picking Cotton, a memoir they wrote together after DNA testing proved that Cotton had been wrongly convicted of raping Thompson as a college student.

Progress on the Road to Valid, Reliable Forensics

NASNCFS

The National Academy of Sciences of the United States published it’s Congressionally commissioned report,  “Strengthening Forensic Science in the United States – A Path Forward,” in 2009.  This was in response to the realization that a lot of what goes on in forensics can be called “junk science.” That is, much of it is not scientifically proven, is not statistically valid, is not reliable, and is very subject to the biases of individual examiners. We have featured the NAS report previously on this blog here, here, and here.

Not surprisingly, the NAS report was met with “stonewall” and dismissive resistance from the extant forensics community, as well as the National Association of District Attorneys.  However, the report succeeded in bringing forensics under the scrutiny of scientific discipline, and made the public aware of its many shortcomings and failings.  Subsequently, it was announced in 2013 that the US Department of Justice and the National Institute of Standards and Technology (NIST) would jointly form the National Commission on Forensic Science to provide guidelines and recommendations for the conduct and use of forensic technology.  The first meeting of the Commission was in February, 2014.

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