Author Archives: Mark Godsey

All Americans should have a right to counsel

Our Sixth Amendment right to counsel is one of our chief defenses against the power of the government to take the property, the liberty — and in some cases, the life — of the accused. Yet it is sadly and routinely abused by the government. The well-documented failure of state and local governments to respect this critical constitutional right has resulted in unjust convictions, hurt public safety and cost taxpayers dearly.

Unfortunately, it came to light last Thursday that Attorney General Jeff Sessions has effectively shuttered the Access to Justice Office, the very section of the Department of Justice that was created to help protect this essential constitutional right. While it is quite common for a new administration to shift priorities and reshuffle departments, the closure of this office is a real blow and should be reversed.

Each day, thousands of people are incarcerated in states, counties and municipalities without ever speaking to an attorney and in flagrant violation of their constitutional right to counsel.  For those that do get an attorney, a defendant is too often assigned a lawyer beholden to the presiding judge to secure future court appointments, or one driven by financial incentives to dispose of the case quickly. Or, she may be represented by a public defender office, which is likely to be understaffed, underfunded, undertrained and overworked, and often lacking the oversight necessary to ensure constitutionally adequate representation.

The Access to Justice Office helped preserve our Sixth Amendment rights by intervening in cases challenging the denial of effective counsel to indigent defendants. Its work on behalf of the American people led to agreements by states and counties to reform their justice systems to ensure that people accused of crimes — including children — do not lose their constitutional rights simply because they are too poor to afford an attorney.

The move to effectively close the office is shortsighted, particularly for those concerned about public safety. Poor lawyering is the chief cause of wrongful conviction in almost a quarter of the cases in the National Registry of Exonerations. When law enforcement resources are misdirected at the innocent, guilty perpetrators remain at large, free to commit new crimes and harm new victims. As such, our Sixth Amendment crisis has the potential not only to harm those directly caught up in the criminal justice system, but society at large.

Read more here →

Quick Clicks

The False Conviction of the District Attorney Turned Reality Star

Philadelphia’s DA office keeps secret list of suspect police

We need to talk about an injustice.

Dossier Alleges Scathing Misconduct by Colorado U.S. Attorney’s Office & Federal Judges

Denver, CO — (ReleaseWire) — 09/22/2017 –Federal prosecutors “won their case through willful failing to disclose evidence (favorable to the defendant)”, said Congressman Sensenbrenner. “If [prosecutors] had complied with the ethical and legal obligations, the jury might not have convicted [the defendant],” added Sensenbrenner.

In speaking about the same prosecutorial misconduct, Congressman John Conyers said that “If these offenses could happen to [this defendant], they could happen to anyone. Often overlooked is the fact that prosecutorial misconduct of this nature happens with alarming frequency, to the obvious harm of countless defendants…”.

“When the government conceals information in a prosecution that could undermine its case against a defendant, such concealment is fundamentally and constitutionally unfair as well as unethical, and it is illegal…” said Congressman Bobby Scott.

“The alleged prosecutorial misconduct by the Colorado U.S. Attorney’s Office in the IRP6 case, which includes unlawful obstruction and interference with favorable evidence that could undermine the government’s case, was a hundred times worse than the case mentioned above by Congressmen Sensenbrenner, Conyers and Scott,” says Lamont Banks, Executive Director of A Just Cause. “I am hopeful that after reviewing the IRP6 dossier, the DOJ, in the interest of justice, will file a Rule 48(a) motion to dismiss the IRP6 indictment to free five men of the IRP6 who continue to languish in prison after five years on a wrongful conviction,” adds Banks. “Any dismissal would probably have to be filed with U.S. Supreme Court Justice Sonia Sotomayor (who oversees the District of Colorado and 10th Circuit) because of their proven, deep-seated bias against the IRP6 which is discussed in the dossier,” contends Banks.

“The dossier lays out numerous facts and evidence that proves the IRP6 are actually innocent and shows how prosecutors and judges allegedly colluded together, taking calculated and premeditated steps to deny the IRP6 a fair trial and appeal. This was achieved by deceiving two grand juries, a trial jury, and blatantly violating a federal statute to ensure defendants couldn’t present evidence & testimony that could have exonerated them. Furthermore, forcing one of the IRP6 defendants who were representing themselves to testify in violation of their 5th Amendment rights. Concluding with destroying and/or concealing portions of trial transcripts to hide judicial threats,” adds Banks. “Absent a legitimate criminal case against the IRP6, the government secretly took allegedly unlawful steps to prosecute their Pastor and church members,” says Banks. “It’s all exposed in the dossier.”

Read more on the dossier here

Quick Clicks

TUNNEL VISION Arizona Prosecutors Double Down on Murder Theory as the Evidence Crumbles Around Them #BlindInjusticeChapter7BlindTunnelVision 

BLIND MEMORY This 2015 study is now being challenged as exaggerating its results. I discussed this study in #BlindInjusticeChapter5BlindMemory


Not Even the Supreme Court Can Get This 71-Year-Old Man Out of Prison

In January 2016, the Supreme Court ruled that Henry Montgomery’s life prison sentence was unconstitutional and that he had the right to seek release from Louisiana’s most notorious prison, Angola. But two years later, the 71-year-old Montgomery is still there.

A Baton Rouge jury convicted Montgomery of murder and sentenced him to life in prison for shooting a deputy sheriff, Charles Hurt, in 1963, when he had just turned 17. In 2012, the Supreme Court ruled in Miller v. Alabama that such mandatory life-without-parole sentences for juveniles were unconstitutional. Montgomery petitioned the court with the help of a jailhouse lawyer, asking it to apply the Miller decision retroactively to people who’d received such sentences before 2012. The court ruled in his favor.

Justice Anthony Kennedy wrote that “prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”

Montgomery hasn’t been so lucky. Despite being housed in a famously brutal prison for half a century, he has been a model prisoner, the court noted. But the local prosecutor has fought his attempts at release, arguing that Montgomery should simply be resentenced to life without parole. Hurt’s children and grandchildren have also opposed Montgomery’s release.

This year, a state judge finally granted Montgomery the right to a parole hearing, which was scheduled to take place last month. But on the day of the hearing, the board voted to postpone it while the board and the state attorney general fight over how many board members need to be present to hear the case under a new state law. The board said it hoped to meet again in 60 days, but no hearing has been scheduled.

Read more about Montgomery’s case here.

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#BlindInjusticeChapter2BlindDenial and Dehumanization: The root of all cruetly?

State v. Chester Hollman III – Episode 1 – An Open and Shut Case:


2 wrongfully convicted immigrants face uncertain future

Gabriel Solache and Arturo DeLeon-Reyes were forced to confess to a murder they didn’t commit by detectives who beat them. They were exonerated in December. Now the government wants to deport them.

Freedom was short-lived for two Mexican immigrants recently released after nearly 20 years in an Illinois prison when a judge ruled their confessions in a gruesome double-murder case were likely coerced.

Gabriel Solache and Arturo DeLeon-Reyes, who were freed in December, were immediately detained again. This time they’re awaiting deportation proceedings from Immigration and Customs Enforcement because they entered the country illegally.
They are among several defendants who have walked free because their cases were handled by Reynaldo Guevara, a discredited former Chicago detective facing allegations that for years he beat and bullied defendants to obtain false confessions.
DeLeon-Reyes’ attorney said he’s not sure he even made it past the fence outside the jail.

“But I do know he did see the sunshine without handcuffs on and could see a park and all of those were a first for him in a really long time,” said Andrew Vail, a Jenner and Block attorney who worked on the case for free.

DeLeon-Reyes and Solache’s release adds a chapter to what has become one of the most troubling stories of the Chicago Police Department in recent history. The allegations of Guevara’s brutality last year led to five overturned convictions. In previous years there have been other cases. One resulted in a 2009 jury award of $21 million — the largest award in a wrongful conviction judgment at the time — to a man who spent 11 years in prison before his conviction was overturned.

Guevara has repeatedly invoked his Fifth Amendment right to remain silent when he’s been called to respond to defendants’ allegations in several cases. He did the same late last year at a hearing for Solache and DeLeon-Reyes, but this time prosecutors granted him immunity hoping his testimony would keep their convictions intact.

But Guevara’s answer to every question was read more here…

Why Does Our Justice System Fight So Hard to Keep Innocent People Behind Bars?

In the criminal-justice system romanticized by Hollywood films, those convicted of crimes are generally guilty. And a protagonist need only prove that someone’s been wrongly imprisoned to get them freed by a judiciary that values truth and justice. The scrappy investigative reporter, jaded detective, or overmatched defense attorney comes up with the key piece of evidence that proves beyond doubt that someone has been wrongly convicted, and in the next scene that person walks out of the courthouse to be surrounded by joyful loved ones and supporters as the credits roll.

The real world is often quite different. Since it was established in 1992, the Innocence Project has succeeded in reversing the convictions of over 200 people, but the group says that a “staggering number of innocent people” remain behind bars today.

Perhaps even more troubling is that even when clear, indisputable evidence emerges showing that someone has been imprisoned for a crime they didn’t commit, prosecutors, police, and judges will often fight tooth and nail to keep them incarcerated. Read on →

Quick Clicks

SAPD terminates, for a second time, a detective who allegedly botched 130 cases

Why suspects may ‘look alike’ to eyewitness

Denver police acknowledge errors with 1,000 crime reports, prompting internal investigation


Texas judge interrupts jury, says God told him defendant is not guilty

         A state district judge in Comal County said God told him to intervene in jury deliberations to sway jurors to return a not guilty verdict in the trial of a Buda woman accused of trafficking a teen girl for sex.

        Judge Jack Robison apologized to jurors for the interruption, but defended his actions by telling them “when God tells me I gotta do something, I gotta do it,” according to the Herald-Zeitung in New Braunfels. Read More →

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Blind Memory: Forgotten Baby Syndrome can happen to anyone 

Blind Ambition: Baltimore judge tosses Alford plea, rebuking prosecutor

Blind Intuition: Is Scott Peterson Innocent?

‘Believe the Victim:’ The Transformation of Justice

The Center for Prosecutor Integrity is calling on prosecutors and investigators to end the use of biased “Believe the Victim” investigative methods in sexual assault and domestic violence cases. This white paper focuses on how automatically believing a complainant often leads to injustice.

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Cook County judicial candidate, colleague misled jury into wrongful conviction

Why Is It So Hard for Wrongfully Convicted Women to Get Justice?

Cliven Bundy case: How big a problem is prosecutorial misconduct?

Cliven Bundy wanted to walk out of the courtroom in his jail jumpsuit and ankle shackles. Deputy marshals blocked him from doing that. But if it hadn’t been for “flagrant misconduct” committed by federal prosecutors and investigators in the case, the Nevada cattleman may not have been walking out at all.

US District Judge Gloria Navarro dismissed the case, which related to an April 2014 standoff with federal officers seeking to impound Mr. Bundy’s cattle, “with prejudice” this week – meaning prosecutors cannot retry the case on the same charges. “The court has found that a universal sense of justice has been violated” by prosecutors who withheld and misrepresented vast quantities of evidence, she told the courtroom.

The case is a dramatic example of prosecutorial misconduct, which some legal experts see as a cultural flaw in the criminal justice system. Prosecutors are arguably the most powerful actors in the system, in part because they are the gatekeepers for most evidence in a case. Having to provide evidence to a defendant while also seeking to beat them in court understandably can lead to temptation, legal experts say.

“It’s like making your own calls in a basketball game: ‘That wasn’t a foul on me,’ ” says John Raphling, a senior researcher at Human Rights Watch who spent more than two decades as a criminal defense lawyer in California.

“I don’t want to say it’s human nature, but it’s a natural tendency to see things your own way,” he adds, “especially when you’re wrapped up in the competitive world of trying cases.”

Read the full story here.

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Bill would give Norfolk Four $3.5M for wrongful rape, murder convictions

City agrees to pay $9.3 million for wrongful conviction tied to Burge detectives

The Innocence Deniers

Great article about #BlindInjusticeChapter2BlindDenial

Lara Bazelon writes: In an adversarial legal system, it’s natural to presume that prosecutors and defense attorneys are driven by the same goal: to win. They aren’t. In Berger v. United States, decided in 1935, the Supreme Court famously declared that the prosecution’s ultimate goal “is not that it shall win a case, but that justice shall be done.” A prosecutor, the court wrote, “is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.”

 [And yet] some prosecutors—the most powerful actors in the criminal justice system—refuse to correct life-altering errors.


An Unqualified Injustice

By Clark Neily

This article appeared in The Washington Times on January 1, 2018.

One of the most important tools we have for holding police and other public officials accountable is the ability to sue them when they violate our rights. But the Supreme Court has undermined this vital accountability mechanism with a legal fiction called “qualified immunity.” On Friday, the court will have an opportunity to change course by agreeing to hear a case involving a tragic miscarriage of justice.

Andrew Scott was home playing video games with his girlfriend after midnight on June 15, 2015, when someone began pounding on the door to his apartment. The frightened couple retreated to Scott’s bedroom, where he retrieved his pistol and then made his way back to the living room. Carefully opening his front door, Scott saw an armed man and started to back up. The man immediately fired six shots, striking Scott three times and killing him.

The shooter was Lake County, Florida, Sheriff’s Deputy Richard Sylvester, who was investigating an assault and battery involving a dark-colored motorcycle several miles away. Seeing a dark-colored motorcycle in the parking lot outside Scott’s apartment – but making no effort to connect the motorcycle to the assault or to Mr. Scott – deputies surrounded the unit, drew their weapons, and banged on the door without identifying themselves. When Mr. Scott answered the door with a gun in his hand, as he had a constitutional right to do, Mr. Sylvester shot him dead.

Qualified immunity was invented by the Supreme Court out of whole cloth and has no basis statutory text, legislative intent, or sound public policy.

Mr. Scott’s parents filed a lawsuit, and the deputies moved to dismiss on the grounds that they had not violated any “clearly established” right and were therefore entitled to qualified immunity. The trial judge and the court of appeals agreed. The Supreme Court should take the case and dial back qualified immunity for three reasons.

First, qualified immunity was invented by the Supreme Court out of whole cloth and has no basis statutory text, legislative intent, or sound public policy. Federal law provides that police and other state actors are liable for the deprivation of “any rights.”

But the Supreme Court has qualified that standard (hence the term qualified immunity) by substituting the phrase “clearly established” for “any.” That was a blatant act of judicial policymaking, as University of Chicago law professor Will Baude demonstrates in a recent law review article that utterly destroys the originalist pretensions of qualified immunity.

Second, the clearly established standard is both malleable and perverse. It is malleable because it asks whether existing case law was sufficiently analogous to put officers on notice that their conduct was illegal. But the answer to that question nearly always be gamed simply by dialing the level of generality up or down.

For example, the Sixth U.S. Circuit Court of Appeals issued a decision last week, Latits v. Phillips, in which the judges unanimously agreed that a police officer violated the Constitution by shooting a fleeing suspect, but disagreed as to whether the violation was sufficiently clear to overcome qualified immunity. It all came down to their perception of whether existing case law placed the fact of the violation “beyond debate.” One judge said yes, two said no: case dismissed.

The clearly established standard is not just malleable but also perverse because it provides the greatest protection for the worst conduct. Thus, the more outrageous an officer’s actions, the less likely it will be that anyone else has behaved similarly and the harder it will be to find a case on point. Pity the Georgia man who was recently ordered to cut the head off of his own dog by deputies who shot it for being aggressive. If he sues, the deputies might well win precisely because their conduct was so far beyond the pale.

Finally and most importantly, qualified immunity sends police officers false signals about the constitutionality of their actions. Think about it from a cop’s perspective: The law says I’m liable for the deprivation of any right; this guy sued me for violating his rights, but the judge tossed the case; ergo, I must not have violated any of his rights. That is a grave mistake for one officer to make in a single case; the consequences when countless officers commit the same fallacy in hundreds of qualified immunity cases across the nation are horrendous. Just ask the parents of Andrew Scott.


Clark Neily is vice president for criminal justice at the Cato Institute.

Quick Clicks

False Memories: Robert Thorson: How We Shape Our Fallible Memories

Blind Ambition: More Than a Dozen Men Ask Court to Formally Declare Their Innocence

Can Cops Unlearn Their Unconscious Biases?


“Implicit bias” training is spreading to departments around the country. This article looks at what is currently being offered, social-science studies which examine implicit bias, and what should be included during and after trainings are offered.

The hope is an effective training course will positively influence officer behavior on the street and reduce the side-effect harms of implicit bias.

Interview: Peter Neufeld, co-founder of the national Innocence Project, on prospects for state and national forensic-science reform

Grits conducted an interview with national Innocence Project co-founder Peter Neufeld discussing forensic-science topics including the abolition of the national forensic science commission, of which Neufeld was a member and DNA mixture controversies. You can listen to the full interview and read the transcript of the interview here.
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