From Foxnews.com:
Chen Keyun’s legal nightmare began in 2001 when he was accused of detonating a bomb outside a Communist Party office in his southern coastal city of Fuqing.
Chen denied committing the crime but was held for 12 years, during which he was tortured into confession and twice sentenced to death. He finally was released and exonerated this year, a case that exemplifies the miscarriage of justice that China’s Supreme People’s Court now says it wants to curtail.
Last week, it released its first set of detailed recommendations for preventing wrongful convictions: Judges should presume defendants are innocent until proven guilty, reject evidence obtained through torture, starvation or sleep deprivation and refrain from colluding with police and prosecutors.
The moves reflect Chinese leaders’ recognition that an increasingly prosperous public is demanding a more predictable and fair justice system, though party officials are unlikely to fully loosen their grasp over the courts.
“It is of significance and if adopted seriously, it will effectively help prevent the occurrence of wrongful convictions,” said Prof. Tong Zhiwei, a legal expert at the East China Politics and Law University in Shanghai. “The question is whether the regulation will be fully implemented at local levels.”
The recommendations are seen more as an effort to build a more professional judiciary, one in which judges observe legal process and make rulings that are based on sound evidence — rather than grant courts full independence.
“If courts can be more independent, then these problems can be easily solved,” said Li Fangping, a prominent defense attorney in Beijing. “This guidance can only increase their independence a little bit. On technical issues, it will be of help, but as long as there are cases where there will be intervention, it won’t be of much use.”
In China, the party controls the courts, police and prosecutors. Some judges are not trained in law, and they rarely acquit defendants for fear of embarrassing their partners in law enforcement. Experts and defense lawyers say police commonly fabricate evidence or use torture to obtain confessions.
Chen Keyun was a manager of a state-owned labor recruiter in Fuqing when a bomb exploded in 2001 outside the city branch of the party agency that investigates cadres for corruption. The explosion killed an agency driver.
Attacks on offices that represent party or government power in China are treated with great urgency, with authorities moving swiftly to solve the case and punish perpetrators to send a message of zero tolerance.
Police turned to Chen as a suspect because he previously had been investigated by the anti-graft office and punished. Five others, including Chen’s driver Wu Changlong, Chen’s wife, Wu’s former brother-in-law and two migrant workers, also were arrested for involvement in the attack.
Police detained Chen, then 48, and in the two months that followed, he said, deprived him of sleep, beat him, starved him, and dangled him for hours by strapping his wrists to iron rods on a high window.
“They treated me like less than a dog,” Chen, now 60, said in a phone interview. “I was an old Communist Party cadre who had been about to retire, I had never thought that something like this could happen to me.”
Chen said he protested his innocence until he could no longer endure the torment.
His interrogators eventually forced him to sign a confession, though he later tried to retract it, telling other investigators he had been tortured. Chen’s lawyer took pictures months later showing deep welts on his wrists. Others accused in the case also said they were tortured.
The Fuzhou City Intermediate Court sentenced Chen and Wu to death with a two-year reprieve in 2004, and three of the others to various terms of imprisonment. The defendants appealed in 2005 and several domestic newspapers reported that they might have been wrongfully convicted. The Fujian provincial high court turned the case back to the city court and ordered a retrial.
In 2006, the Fuzhou court tried the case again and upheld the suspended death sentences for Chen and Wu. They appealed again, and in 2011 the provincial court tried the case yet again. In May, the court acquitted all five defendants.
The court offered compensation of about 4.2 million yuan ($690,000) to the five of them in September but they are demanding more, as well as an acknowledgement that they were tortured.
Chen’s is one of a few high-profile cases of wrongful convictions overturned in recent months. In March, a court in eastern Zhejiang province retried and acquitted two men who were convicted in 2004 of raping and murdering a woman, after DNA evidence from another case ruled out their involvement in the crime.
The Supreme People’s Court’s latest directive is seen as building on earlier comments by its president, Zhou Qiang, on the importance of preventing wrongful convictions. Rights activists say it is a welcome move, but may not be enough to curb abuses.
“The guidelines fail to address the structural problems that create wrongful convictions — police power that goes unsupervised, the lack of judicial independence, the absence of effective remedies when things go wrong, and weak defense rights,” said Maya Wang, a Human Rights Watch researcher in Hong Kong. “Thus it will be unlikely to achieve much impact on the ground.”
Posted in Asia, False confessions
Posted in Events, Exonerations, United Kingdom
From voanews.com:
China’s top court has ruled out forced confessions and vowed to reduce miscarriage of justice, in a move that highlights increasing policy emphasis on legal reform.
The directive, issued by China’s Supreme People’s Court on Thursday, is intended to strengthen the rule of law in a system that many analysts agree still lacks basic elements of judicial independence.
The court says that all levels of the judiciary are required to perform their duties strictly according to the law, base their judgments on facts, and protect human rights. It lists 27 provisions, including the protection of defendants’ right of attorney, the need for trials to be open and based on legally obtained evidence, and the elimination of confessions obtained through torture.
Encouraging sign
Nicholas Bequelin of Human Rights Watch says the ruling is an encouraging sign that the government is responding to pressure from society demanding better rights protection during criminal trials.
“It gives a foothold to lawyers and legal reformers in China, it helps them put pressure on the police, on the courts, on the judicial system whenever they don’t act accordingly,” he says.
In recent years, China has introduced procedural mechanisms to guarantee defendants fair trials, including an amendment last year requiring police to allow lawyers to meet with their client within 48 hours after a request is filed. Thursday’s court ruling is a step in that same direction – analysts say – in a system plagued by endemic problems of obtaining confessions through torture, wrongful convictions and persecution of lawyers.
Police remain powerful
But rights advocates say that despite court reforms, the powerful police in China still make the justice system unfair. In a recent case, a Chinese official under investigation for corruption was tortured to death and drowned in a bathtub as police investigators were trying to break him into confession.
Bequelin of Human Rights Watch says that given that courts in China are often subservient to police departments, there are limits to what the courts – such as with Thursday’s provisions – can achieve. “It is all well for the courts to say ‘oh, we are going to make sure we reduce wrongful convictions and torture,’ but the fact is they have very little leverage to do that because it is basically the police that are driving the criminal system in China,” he says.
Call for review of past cases
Li Zhuang, a criminal lawyer based in Beijing, says that to prove they are serious in implementing the documents, courts should start reviewing past cases where lawyers have presented proof of coerced testimony.
Li Zhuang was one of the lawyers targeted in a campaign against mafia in Chongqing, then the stronghold of now ousted politician Bo Xilai. Li was charged with perjury after attempting to defend a local entrepreneur whose confession had been obtained through torture.
Li confessed wrongdoing and was sentenced to 18 months in jail. “Contesting evidence has been provided that sufficiently overthrows that judgment, but it has been more than two years and there has been no review,” Li says. “We have to wait and see whether these provisions will be implemented on the ground. That is the next step.” Li says there is little incentive for court officials to review cases because in many instances they have based career promotions on wrongful convictions.
In Chongqing, some of the city’s wealthiest entrepreneurs were put to jail based on confessions obtained through illegal means, and their assets were seized by the city government. “Many assets seized during the campaign have been spent,” Li says. They used them to plant trees and organize red songs revivals. How can you give back money that has already been spent?”
Evolution of judicial reforms
The Supreme Court’s ruling comes days after China wrapped up an important party meeting and announced key reforms in a number of fields, including its legal system. After much public pressure, party leaders pledged to scrap the system of re-education through labor – a notorious practice of administrative detention that gives the police rights to bypass courts and detain suspects without trial for up to three years.
Such amendments have been welcomed by legal scholars and professionals in China, but some believe that individual measures will be meaningless if they do not ensure independence of the legal system – which in China is still to a great extent under the yoke of the party and the public security apparatus.
Posted in Asia, False confessions
Last week, two innocence organizations in Europe got good news on several cases they have been working on for many months/years.
In the Netherlands, the Knoops Innocence Project obtained the exonerations Andy Melaan and Nozai Thomas in the Dutch Antilles. The Project was able to prove through expert analysis that Thomas was working behind his computer downloading music at the time of the murder, and that Melaan was on the other side of the island (proved via phone records). The Court also accepted that Thomas’ confession was a false confession. The two men served eight and five years in prison respectively. More details here.
In the UK, the Cardiff Innocence Project has had a case referred back to the Court of Appeals by the CCRC. The defendant is Dwaine George, and his murder conviction was based on faulty GSR testimony. More details here. Upon hearing the news, Dwaine said: ‘ I have said from day one that it wasn’t me. I know there are still huge hurdles ahead, but I want to prove my innocence. I just want a chance to get justice, and I want to thank Cardiff’s innocence project students for the work they have done that will hopefully give me that opportunity.’
Congrats to the Knoops and Cardiff Innocence Projects, and more importantly, to Thomas, Meelan and George….
From the Huffington Post:
Today in Texas, four wrongfully convicted women–known as the “San Antonio Four”–had their convictions overturned and were freed. This came about thanks to the latest in a line of innovations Texas lawmakers and the Innocence Project of Texas have devised to help the wrongfully convicted. Often thought of as a rough-and-tumble, “Hang ‘Em High” state–and still leading the nation in capital punishment–Texas is surprisingly now a trendsetter for innocence reforms.
The four women exonerated today–Elizabeth Ramirez, Kristie Mayhough, Anna Vasquez, and Cassandra Rivera–were caught up in the infamous line of ritualistic child sex abuse hysteria cases of the 1980s and early 1990s. Many of these cases involved allegations against day care workers, and many experts now believe that most of the convicted were innocent victims of the witch-hunt mentality prevalent in that era…………
Read entire article here….
Posted in Exonerations, Junk science, Legislation
Below is the editorial I wrote on the Ken Anderson/Michael Morton saga last Friday. I’ve received a lot of emails stating that the 10 day jail sentence was insufficient. I agree, but you have to start somewhere!
From the Huffington Post:
Today in Texas, former prosecutor and judge Ken Anderson pled guilty to intentionally failing to disclose evidence in a case that sent an innocent man, Michael Morton, to prison for the murder of his wife. When trying the case as a prosecutor, Anderson possessed evidence that may have cleared Morton, including statements from the crime’s only eyewitness that Morton wasn’t the culprit. Anderson sat on this evidence, and then watched Morton get convicted. While Morton remained in prison for the next 25 years, Anderson’s career flourished, and he eventually became a judge.
In today’s deal, Anderson pled to criminal contempt, and will have to give up his law license, perform 500 hours of community service, and spend 10 days in jail. Anderson had already resigned in September from his position on the Texas bench.
What makes today’s plea newsworthy is not that Anderson engaged in misconduct that sent an innocent man to prison. Indeed, while most prosecutors and police officers are ethical and take their constitutional obligations seriously, government misconduct–including disclosure breaches known as Brady violations–occurs so frequently that it has become one of the chief causes of wrongful conviction.
What’s newsworthy and novel about today’s plea is that a prosecutor was actually punishedin a meaningful way for his transgressions.
I give speeches about the Innocence Movement, and tell stories from real cases, all around the world. No matter where I am, when I finish speaking the first question usually is, “What happened to the police/prosecutors who did this to the poor guy?” The answer is almost always, “Nothing,” or worse, “The police officer was promoted and now is the chief of his department.” The adage that the powerful go unpunished is no truer or more visible than with police officers and prosecutors in America–even when they send innocent people to prison from their misconduct.
My client Roger Dean Gillispie of Dayton, Ohio, for example, spent 20 years in prison as a result of police misconduct. In 2007, we presented overwhelming evidence that the police officers, like Anderson in the Morton case, failed to turn over evidence to the defense before trial that would have cleared Gillispie. We also supplied the court with evidence that the police officer in charge had harassed and intimidated witnesses helpful to the defense, and had manipulated the evidence. Before going to court to clear Gillispie, we met with the local prosecutors, hopeful that they wouldn’t tolerate such misconduct and would do a thorough (and neutral) investigation to get to the truth. Instead, they simply denied everything in knee-jerk fashion, and fought to keep Gillispie in prison until a federal court finally found government misconduct and threw out his charges in December 2011. To this day, the police officer in the case has not been investigated by a neutral, independent body. The only thing he has received is promotions.
Rogue cops and prosecutors going unpunished is the rule rather than the exception. In Illinois, two police officers whose improperly grueling interrogation techniques led to the wrongful conviction of Juan Rivera and others were not penalized when their 3rd degree tactics came to light. Rather, they were recently hired at taxpayer expense to teach interrogation courses to other police officers around the state.
A recent study found prosecutorial misconduct in nearly one-quarter of all capital cases in Arizona. Only two of those prosecutors have been reprimanded or punished. This led theArizona Republic to conclude:
There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct. In fact, they are often congratulated.
Other studies/articles with similar troubling results can be found here, here, here, and here.
Fortunately, there is something very simple that judges across the country can do to eradicate this problem. All judges, state and federal, should issue the standing “ethical rule order” proposed by the Hon. Nancy Gertner and Innocence Project Co-Founder Barry Scheck. The proposed order requires prosecutors to disclose, pre-trial, all evidence that “tends to negate the guilt of the accused or mitigates the offense.” Details regarding the proposed ethical rule order, including all the justifications supporting it, can be found in this article by Barry Scheck.
The reason such standing ethical rule orders are important is that they allow prosecutors, like Ken Anderson, to be held in criminal contempt if they are later found to have engaged in misconduct. Anderson could be punished today only because such an order had been issued in the Morton case.
Today’s conviction of Ken Anderson stands out as an extreme aberration in a society where police and prosecutorial misconduct goes largely unpunished. But it is a step in the right direction. Hopefully, today’s result will deter rogue cops and prosecutors in the future from engaging in similar misconduct. But this will happen only if judges across the country do what the judge did more than 25 years ago in the Morton case: issue an order requiring that proper disclosure to the defense, or risk criminal contempt proceedings.
Posted in False confessions, Legislation, Project Spotlights
From the Huffington Post:
Memory lapses are not as simple as occasionally forgetting where we left our keys. Elizabeth Loftus’s talk, “The Fiction of Memory,” shows how human memory is far weaker and more malleable than most of us realize. Unlike a tape recorder, which plays back verbatim, our memories are like quick-sand, forever moving and shifting underneath us, creating distorted or entirely false memories in the process. And we are surprisingly susceptible to having our memories permanently altered by even the slightest suggestions from others. The scariest part of it is that we are not aware of how much our memories are in flux, and by nature believe our distorted memories to be 100 percent accurate.
Although differing memories can contribute to such things as family squabbles about who was last seen holding the missing TV remote, Loftus shows how the frailties of human memory affect the criminal justice system, and can cause the wrongful conviction of innocents. This happens, for example, when witnesses remember what they saw incorrectly, and identify an innocent person as the perpetrator. Mistaken eyewitness identification has proven to be the leading cause of wrongful conviction, playing a role in 75 percent of the cases. In many cases where a defendant was later proven innocent, multiple witnesses — in one case as many as 10 witnesses — testified with certainty that the man on trial was the person they saw commit the crime.
Loftus’s research on memory is partially an outgrowth of the Innocence Movement — the phenomenon of suspects being convicted and sent to prison for inhumane crimes they didn’t commit, only to find out years later, usually through DNA testing, that they were 100 percent innocent. The National Registry of Exonerations now lists more than 1,200 wrongful convictions of innocent people since 1989, some of whom were represented by my organization — the Ohio Innocence Project. And while our society has grown accustomed to turning on the news and seeing an innocent man or woman walking out of prison after serving 20 or 30 years for a crime he didn’t commit, the most newsworthy contribution of the Innocence Movement in the long run may end up being what it has taught us about the frailties of the human psyche.
Indeed, the Innocence Movement has proven to be fertile ground for forensic psychologists to study human behavior and human error. How could 10 witnesses have all said they were certain a defendant was the perpetrator of the crime, when DNA testing later proved that he was innocent? How could the police have been so convinced that a suspect was the perpetrator, while simultaneously discounting so many clues that pointed directly to his innocence? Why did a fingerprint expert testify at trial that the defendant’s fingerprint was found at the crime scene, when we now know the defendant’s fingerprint was not actually a match?
Loftus’s important breakthroughs about human memory and eyewitness identification error are just the tip of the iceberg in terms of what the Innocence Movement has taught us about the weaknesses of the human mind. I’ll give a few examples here, of which there are many.
One is the human susceptibility to “confirmation bias,” which we now know contaminates forensic sciences. Confirmation bias exists when a forensic expert’s pre-existing beliefs — like a belief that the suspect is probably guilty — skews the results and causes them to come to an inaccurate result. Much of forensic science, such as blood pattern, bite mark, tire or shoe tread, tool mark, and even fingerprint analysis, have subjective elements. In studies, researchers have found that forensic experts will sometimes flip their results (match vs. non-match) more than 50 percent of the time when their biases are manipulated before the process starts. In other words, if you tell a forensic expert that the suspect has confessed, they are much more likely to find that the tire tread in the mud at the crime scene matches the tire tread of the suspect’s car. Conversely, if you tell the forensic expert that the tire tread is from someone the police want to exclude from the crime scene, the forensic expert is more likely to find a non-match.
Our television CSI heroes who always get to the truth are Hollywood myths. In fact, the problem with confirmation bias is so bad that bad forensic science has become a leading cause of wrongful conviction. It is such a problem that the National Academy of Sciences (a nonprofit which counts over 500 Nobel laureates as members) in 2009 issued a scathing reportsuggesting a whole range of reforms, including setting up procedures to shield forensic scientists from the influences of police and prosecutors.
Indeed, we all suffer from false memories, tunnel vision and confirmation bias in all parts of our lives, from our jobs to our interpersonal relationships.— Mark Godsey
Related to confirmation is tunnel vision. Tunnel vision occurs when the cops develop a suspect, get excited that they might have finally solved the crime, and then become so entrenched in their belief that they ignore all the evidence of innocence that arises in their investigation. Tunnel vision is dangerous, and it happens all too often. Cops who suffer from tunnel vision and convict an innocent person aren’t bad people — they’re human beings. Unless we’re careful, slow down, and take the necessary precautions, we’re all susceptible to this problem. Indeed, we all suffer from false memories, tunnel vision and confirmation bias in all parts of our lives, from our jobs to our interpersonal relationships.
We’re also not as good as we think at telling when witnesses are lying or telling the truth. In many of the 1,200 plus cases of wrongful conviction in the Registry, the innocent defendant testified in his defense at trial, and told the jury he didn’t do it. But the jury didn’t believe him, and in many cases, was fooled by witnesses who we now know were flat out lying. Subsequent studies have shown that, contrary to popular belief, we humans simply aren’t as good as we think at watching the nonverbal behavior of witnesses and determining whether they are being truthful.
In sum, our criminal justice system is based on the premise that we are pretty good at reconstructing facts of a crime to figure out who did it and why. We believe we can objectively and neutrally investigate, and then sort through the conflicting evidence to determine what to believe and what to discard. The Innocence Movement, with all of the psychological breakthroughs it has helped spawn, has shown this is not necessarily true. And our weak and malleable memories addressed by Dr. Loftus are just part of the problem. Experts have outlined steps that can improve the process, and reduce wrongful convictions. Making the effort to learn from the Innocence Movement would not only make our criminal justice system more accurate, but would help us better understand human vulnerabilities in everyday life.
Posted in Uncategorized
From the BBC:
Human memory constantly adapts and moulds itself to fit the world. Now an art project hopes to highlight just how fallible our recollections are.
All of us generate false memories and artist Alasdair Hopwood has been “collecting” them.
For the past year he has asked the public to submit anecdotes of fake recollections which he turns into artistic representations.
They have ranged from the belief of eating a live mouse to a memory of being able to fly as a child.
One man who wrote in wrongly believed his girlfriend had a sister who died while at the dentist. So strong was his conviction that he kept all his dentist visits secret.
He wrote: “Over dinner one day she said she was going to the dentist the next week. It all went quiet at the table and my mum said it must be hard for her to visit the dentist after what had happened.”
This is hardly a rare case. Neuroscientists say that many of our daily memories are falsely reconstructed because our view of the world is constantly changing.
Imagination trick
Subtle cues can easily steer our memories in the wrong direction.
A famous experiment carried out by Elizabeth Loftus in 1994 revealed that she was able to convince a quarter of her participants they were once lost in a shopping centre as a child.
Another similar experiment in 2002 found that half of the participants were tricked into believing they had taken a hot air balloon ride as a child, simply by showing them doctored photographic “evidence”.
This work was carried out by Kimberley Wade at the University of Warwick, UK. For the current project she was asked by Mr Hopwood to take part in a real hot air balloon ride, video and images of which are now exhibited in his show. She says she was very excited to take part.
“I’ve been studying memory for more than a decade, and I still find it incredible that our imagination can trick us into thinking we’ve done something we’ve never really done and lead us to create such compelling, illusory memories,” she says.
The reason our memories are so malleable, Kimberley Wade explains, is because there is simply too much information to take in.
“Our perceptual systems aren’t built to notice absolutely everything in our environment. We take in information through all our senses but there are gaps,” she adds.
“So when we remember an event, what our memory ultimately does is fills in those gaps by thinking about what we know about the world.”
Lost keys
For the most part false memories are about everyday situations with no real consequences except the occasional disagreement with a friend or partner about trivial things like who lost the keys, again.
But sometimes, false memories can have more serious ramifications. For example, if an eyewitness testimony in court contributes to a false conviction.
Forensic technology has now led to many such convictions being overturned. The Innocence Project in the US campaigns to overturn eyewitness misidentification and lists all the people who have subsequently been acquitted.
The project reports that there have been 311 post-conviction DNA exonerations in the US, which includes 18 people who were sentenced to death before DNA evidence was able to prove their innocence.
Christopher French of Goldsmiths University in London says there is still a lack of awareness of how unreliable human memory is, especially in the legal system.
“Although this is common knowledge within psychology and widely accepted by anybody who has studied the literature, it’s not widely known about in society more generally,” he says.
“There are still people who believe memory works like a video camera as well as people who accept the Freudian notion of repression – that when something terrible happens the memory is shoved down into the subconscious.”
But the evidence of repressed memories, he adds, is “very thin on the ground”.
Prof French was also involved in the memory project. He hopes it will create more awareness of the malleability of human memory.
Alasdair Hopwood says he was fascinated that people could strongly believe in an entirely imagined event.
“What’s interesting is that the submissions become mini-portraits of the person (albeit anonymously) yet the only thing you are finding out about this person is something that didn’t actually happen. So there’s a lovely paradox there which I’m very drawn to as an artist,” he says.
According to another researcher, the errors the human brain makes can sometimes serve a useful purpose.
Sergio Della Sala, a cognitive neuroscientist at the University of Edinburgh, UK, says it can be thought of in the following way. Imagine you are in the jungle and you see some grass moving. Humans are likely to panic and run away, with the belief that there could be a tiger lurking.
A computer, however, might deduce that 99% of the time, it is simply the wind. If we behaved like the computer, we would be eaten the one time a tiger was present.
“The brain is prepared to make 99 errors to save us from the tiger. That’s because the brain is not a computer. It works with irrational assumptions. It’s prone to errors and it needs shortcuts,” says Prof Della Sala.
False memories are the sign of a healthy brain, he adds. “They are a by-product of a memory system that works well. You can make inferences very fast.”
Posted in Eyewitness identification, False confessions
Posted in Uncategorized
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