Category Archives: Defense lawyering (good and bad)

Pro Bono Debates in Singapore

Posted on February 9, 2013 by | Leave a comment

Debates about making pro bono compulsory for lawyers continue in Singapore. Under the new proposed scheme, lawyers are required to do 16 hours of pro bono each year. Some lawyers are supportive, but many are unhappy with being “forced” to do pro bono.

The debates go essentially to what it means to be a lawyer. Qualified lawyers hold resources and skills which are in limited and controlled supply, but which are necessary for ordinary people to access the essential public good of justice. Due to the scarce and essential nature of lawyering skills, it is possible to see members of the legal profession as holding a limited form of stewardship over their resources. Such a stewardship would require them to make their resources available, in a reasonable and non-disruptive manner, to the community for public purposes.

More importantly, there is the deeper question of whether the burden of providing the lawyering skills and human resources necessary for legal aid, particularly criminal legal aid, should be shouldered by private lawyers alone. Statistics show that more than one-third of criminal defendants claiming trial do not have legal representation. Currently, the government provides funding for the Legal Assistance Scheme for Capital Offender (LASCO), which applies to capital cases, and the Criminal Legal Aid Scheme (CLAS), which is run by the Law Society of Singapore. These schemes assign private lawyers to criminal cases. If we as a society believe that justice is a public good accessible to all, the pursuit of accessible justice cannot be left primarily to private enterprise. This is especially important given the fact that poor lawyering is widely acknowledged as one of the reasons for wrongful convictions. If justice is a public good, access to quality lawyering needs to be more strongly guaranteed by the State as society’s ultimate guarantor of public goods. It is time for the Singapore State to establish an Office of Public Defence to complement the pro bono efforts of private lawyers in Singapore.

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Posted in Asia, Defense lawyering (good and bad)

Monday’s Quick Clicks…

Posted on January 14, 2013 by | Leave a comment
click
  • Center on Wrongful Convictions at Northwestern University 2012 report, outlining 5 exonerations during 2012
  • Judge in Texas considering new trial in arson case of Ed Graf
  • Charges dropped against detective accused of lying in the Tim Masters wrongful conviction case in Colorado
  • Wisconsin Innocence Project wins new trial for Seneca Malone, in prison for murder, based on ineffective assistance of counsel
  • RIP exoneree Bennett Barbour

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Posted in Defense lawyering (good and bad), Exonerations, Forensic controls, Junk science, Police conduct (good and bad)

Legal Representation and Pro Bono Developments: Singapore

Posted on November 21, 2012 by | Leave a comment

At the proposal of the Singapore Institute of Legal Education, Singapore’s two law schools will establish mandatory pro bono programmes for undergraduate law students. The programmes are to start from 2013.

In his 2012 speech during the opening of the legal year, the then Singapore Chief Justice called on more lawyers to take on pro bono cases. Noting that such a commitment to pro bono can be nurtured, it is in this spirit that Singapore’s future lawyers will be exposed to pro bono work during their student days.

In Singapore, the State does not guarantee across-the-board free legal representation in criminal cases for indigent persons. An exception to this is the Legal Assistance Scheme for Capital Offenders (LASCO) run by the Supreme Court Registry which ensures those charged with a capital offence access to assigned lawyers. This makes access to high quality pro bono all the more important in Singapore. Currently, Singapore lawyers provide pro bono for criminal cases via the Law Society’s Criminal Legal Aid Scheme and the Association of Criminal Lawyers of Singapore.

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Posted in Asia, Defense lawyering (good and bad)

Conviction Reversal Illustrates Importance of Competent Defense Counsel

Posted on November 19, 2012 by | 5 comments

Rafael Madrigal, Jr. embraced his children—Kimberly, 8, Raphael, 11, and Andrew, 15—and his wife Veronica after his release in October 2009 from a California prison. See video (here). A federal judge overturned his conviction for attempted murder related to a drive-by shooting after Madrigal had served 9 years in prison. The reversal was based on evidence supporting Madrigal’s innocence that his attorney never presented to the jury. Continue reading →

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Posted in Defense lawyering (good and bad), Editorials/Opinion

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Monday’s Quick Clicks…

Posted on November 19, 2012 by | Leave a comment
  •  Worried about wrongful convictions, High Court in Bombay, India rules that a conviction cannot be based solely on a dying declaration
  • Federal judge criticizes a prosecutor for his role in a wrongful conviction case
  • Honoring the role of defense attorneys in New Zealand
  • Video of John Montgomery’s family thanking the Mid-Atlantic Innocence Project
  • Exoneree Jerry Hobbs’ lawsuit against Chicago area prosecutor continues to move forward
  • State Rep. Jamilah Nasheed urges Missouri AG to drop appeal of exoneration of George Allen
  • Discussion of recent symposium on false confessions held at Temple Law School and sponsored by the Pennsylvania Innocence Project
  • Erie County, New York District Attorney Frank A. Sedita III is looking into the possibility that a man who pleaded guilty six years ago to a double murder on Buffalo’s West Side was wrongfully convicted.  Sedita said he became aware of the possibility about a week ago, when he learned that federal authorities were charging three other men with the murders of Nelson and Miguel Camacho in 2004.  Josue D. Ortiz, the man originally convicted in the killings, has spent the past six years in prison.

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Posted in Asia, Australia/New Zealand, Compensation/Exoneree compensation, Defense lawyering (good and bad), False confessions, Prosecutorial conduct (good and bad), Reforming/Improving the system

How much justice can we afford during the UK’s financial crisis?

Posted on September 8, 2012 by | 1 comment

Justice is yet again coming under threat in the UK. With a government hell bent on cutting expenditure, the justice system is proving an easy targets for cuts. These cuts, whilst widely criticised, are only now starting to result in the inevitable: injustice. The most obvious cuts have been to legal aid budgets: this is not new of course, governments have been cutting the legal aid budget for years – but it has now reached crisis point, with criminal lawyers leaving the profession and ineffective defence lawyering becoming widespread. These cuts are proposed to be 40% – see here…

Legal aid cuts: if lawyers don’t defend justice for all, who will?

These cuts in addition of course to the privatisation of the court interpreting service, which I have blogged about previously.

Recently, we had the closure of the UK’s Forensic Science Service in March 2012 – while lone voices raised serious concerns about this (and I have blogged about this previously) and the risks of miscarriages of justice, the public may finally be starting to sit up. The BBC recently aired a Radio 4 documentary highlighting the risks of flawed forensic science (news item contains link to radio programme):

DNA test jailed innocent man for murder

We are now being warned that budget cuts to the Criminal Cases Review Commission – the body specifically tasked with investigating possible wrongful convictions – is leaving the organisation so cash-strapped it is taking short-cuts and delays are lengthening. The case of Kevin Lane and his fight to get the CCRC to refer his case back the Court of Appeal is just one example:

Prisoner’s 16-year fight to prise open the secrets of Operation Cactus

All of this comes on top of 20% across the board cuts to the police, with some forces cutting their forensic budgets by up to 40% to ‘protect’ frontline policing. Michael Mansfield now warns the government that treating the justice system as a business  risks the entire system with creeping deregulation. The cost of wrongly imprisoning someone (and leaving someone else free to commit more crimes) is difficult to calculate in simple economic terms – the government needs to realise that all these cuts will end up with far greater costs – to public confidence in justice, and the ability of the police and courts to arrest and prosecute the right people. This is too high a cost to bear:

Justice can’t be treated as a business enterprise.

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Posted in Defense lawyering (good and bad), Forensic controls, Uncategorized, United Kingdom

West Memphis Three case taking ugly turn

Posted on August 22, 2012 by | 3 comments

Wrongful conviction cases are often emotional minefields. This is particularly true when the case gets national media attention or it has multiple defendants and legal teams. So it’s not surprising that divisions are surfacing in the high-profile case of West Memphis Three, who were released last year after entering guilty pleas while asserting their innocence.

Evidence of rift between Damien Echols, Jason Baldwin and Jessie Misskelley surfaced last week, when The New York Times reported here that Baldwin and Echols weren’t speaking because of Echols’ criticism of Baldwin for allegedly delaying their release in his forthcoming book, Life After Death.

Yesterday, the Arkansas Times went into greater detail, reporting that “Echols unceremoniously throws fellow WM3’er Jason Baldwin and Baldwin’s defense team under the bus.” You can read the actual quotes and reactions here.

All of this upsets noted forensic scientist Brent Turvey, who helped turn the WM3 case around in the early stages.

“There are many rifts and divisions, some created by misinformation and some created by egos, that exist with the WM3 camps,” Turvey wrote on Facebook today. “The attorneys have been among the worst of these — each clamoring for publicity and credit. It is a strange and perverse thing to bear witness to. . . . When the films start rolling out, it will only get more obscene. It saddens the soul.”

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Posted in Capital punishment, Defense lawyering (good and bad), Exonerations, Film/Cinema

Arson, Fire Science, and Habeas – Case Details, CA vs. Souliotes

Posted on July 8, 2012 by | 2 comments

Mark Godsey recently posted an article on a US District Court ruling about a “time-bar” exemption to habeas law in an arson case that was driven by new developments in fire science.  See that post here.

For those of you who may be interested in the details of the case, here is the original magistrate’s ruling that was upheld by the US District Court:

Habeas Ruling New Fire Science

This was made available by renowned fire scientist John Lentini, who worked on the case.

FYI.  It was necessary for me to post this as a new post, rather than a comment to Mark’s original post, because I can’t embed a document in a comment.  Thank you.

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Posted in Defense lawyering (good and bad), Junk science, Reforming/Improving the system

Federal Judge Finds the Schlup “Actual Innocence” Exception to Apply to Otherwise Time-Barred Habeas Case Based on New Advances in Fire Science…

Posted on July 8, 2012 by | 3 comments

As those who litigate federal habeas cases know, there are strict timelines to bring federal habeas cases.  If an inmate’s lawyer misses the deadline, the inmate is out of luck unless he can meet the gateway “actual innocence” standard from Schlup v. Delo.   A federal judge has found that new advances in fire science, which undermine the basis for the original conviction, satisfy this standard.

From the Los Angeles Times:

By Maura Dolan, Los Angeles TimesJuly 7, 2012
A federal judge has ruled that a Modesto man convicted of setting a fire that killed his tenant and her two children has shown “actual innocence” and may now challenge his conviction on other grounds.Chief U.S. District Judge Anthony W. Ishii upheld the findings of a magistrate who examined the evidence against George Souliotes, 72, and concluded that no reasonable juror would have convicted him given the state of the evidence today.But the court’s finding will not necessarily free Souliotes, convicted of setting a 1997 fire in a rental home he owned.

His lawyers missed a legal filing deadline, and under the law, Souliotes had to prove his innocence before he could appeal his conviction on other grounds, including inadequate legal representation at trial.

In determining actual innocence, the judge considered both old and new evidence, regardless of its admissibility at trial. His decision was based on whether he believed it was “more likely than not” that a reasonable juror with that information would have found the inmate guilty beyond a reasonable doubt.

Ishii said in his ruling that the appeal should now proceed quickly. Citing Souliotes’ age, Ishii said the innocence determination “only heightens” the urgency required.

Fire scientists have discredited evidence that was used to convict Souliotes, and the state has conceded that it no longer can prove that the deadly 1997 blaze was Continue reading →

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Posted in Defense lawyering (good and bad), Forensic controls, Junk science

Nigeria: Trading Justice for ‘Self Help’

Posted on June 29, 2012 by | 1 comment

Dispensing ‘jungle justice’ is a sign of the times in Nigeria. Truth be told, the Nigerian justice system is not only broken, it has completely failed, thence, the resort to self help. As BBC Andrew Walker’s report highlights, the activities of vigilante group who have completely taken over neigbouhood policing, is worrisome. It’s evidently the clearest indication yet, that it is everyman for himself and God for us all. The Hobbesian state. How did Nigeria get to this sorry state?

Ordinary people have completely lost faith in the police and the judicial system to help them seek justice. Despite the understandable constraints under which the police work, that is no excuse for bad policing, extortion of money, bribery and corruption, which seems to be the hallmark of how the ordinary Nigerian views the police and the outright failure to carry out their statutory duties. On the other hand, the ineffective judiciary is plagued with its own malaise of court delays, needless and endless adjournments, deliberate obfuscation of the court processes by lawyers who manipulate the rules of court with a view to ‘extorting’ money from clients, just to prolong cases unnecessarily – bad lawyering. And they find willing accomplices ‘sometimes’ from the bench. In the result, Nigerian citizens are left to their own mercies and fate. Do you really blame them when they now resort to jungle justice? Read Andrew Walker’s report here.http://news.bbc.co.uk/2/hi/africa/8021468.stm

The Nigerian state must find a way to redress this. Most of the institutions connected with the administration of justice should be re-jigged, particularly, the police and judiciary. Leaving this essential reform to international development agencies like DfID, is surely, but a stop gap measure.  They can only compliment the efforts of  government, not as a substitute for government implementing reforms.

‘Self-help’ undermines justice, due process and human rights of victims – however justified the vigilantes are. The likelihood of lumping and lynching an innocent person, by a vigilante ‘mob’, in a situation where there are no defined rules, processes and procedures, is very high. Innocent people have been known to have been killed.

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Posted in Defense lawyering (good and bad), Editorials/Opinion, Police conduct (good and bad), Reforming/Improving the system

Minnesota Innocence Project Trains Defense Lawyers on How To Avoid Wrongful Convictions…

Posted on June 15, 2012 by | 1 comment

From MPRnews.com:

ST. PAUL, Minn. — A man in a bathtub filled with blood. A dead woman, half-naked, lying face down in her kitchen. A child stabbed with a knife.

The photos, part of a lecture by the Hennepin County medical examiner, horrified the defense attorneys who had gathered in the dimly lit room. But they knew they needed to look. The lives of their clients depended on it.

The attorneys had gathered for a crash course on forensic science, organized by the Innocence Project of Minnesota, to help prevent wrongful convictions. Many in the room had followed media coverage of cases in which innocent people went to prison based on junk science and false testimony from forensic experts. The cases alarmed defense attorneys, who worried they lack the right kind of training to detect problems with science in the courtroom.

“You look at cases, and you wonder, if I got a report like that, would I have caught that problem?” said Mankato criminal defense attorney Allen Eskens, who attended the June 8 training at the Bureau of Criminal Apprehension in St. Paul.

In wrongful conviction cases, defense attorneys often blame the shoddy work of a handful of scientists and doctors, said public defender Christine Funk, one of the training instructors. The real question, she said, is how that shoddy work ended up in the courtroom in the first place.

“We need to be investigating when we get science,” Funk told the group.

Funk used the example of a Michigan man, David Gavitt, who was convicted of setting a fire that killed his wife and two daughters. Decades later, students at the University of Michigan’s Innocence Clinic reviewed his case and found problems Continue reading →

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Posted in Defense lawyering (good and bad), Reforming/Improving the system

Tuesday’s Quick Clicks…

Posted on June 12, 2012 by | 1 comment
  • Short news piece on the Alaska Innocence Project
  • Medill Innocence Project scandal makes the “top 1o” news stories at Northwestern University last year
  • Paradise Lost film series about the West Memphis 3 screening in New Haven, CT
  • Tim Masters writes book about his wrongful conviction
  • Sister of woman slain in the North Carolina case in which Gregory Taylor was wrongfully convicted wants police to reopen the investigation to try to find the real killer

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Posted in Book recommendations/discussion, Defense lawyering (good and bad), Film/Cinema, Project Spotlights

Eleventh Circuit Denies Federal Attempt to Obtain Post-Conviction DNA Testing Post-Osborne

Posted on May 17, 2012 by | Leave a comment

From BNA.com:

Holding:  The Rooker-Feldman doctrine blocks federal courts from second-guessing how states apply their post-conviction DNA testing laws to the particular facts of a case.

Potential Impact: If prisoners seeking DNA testing want to be heard in federal court, they must challenge the constitutionality of the law, not its application.

By Lance J. Rogers

The U.S. Court of Appeals for the Eleventh Circuit May 8 made clear that federal courts will not second-guess a state court’s refusal to grant a prisoner’s request for post-conviction DNA testing if the federal lawsuit boils down to a claim that state authorities erred in applying the state’s law on post-conviction testing to the facts of the case. (Alvarez v. Florida Attorney General, 11th Cir., No. 11-10699, 5/8/12).

Federal courts will get involved only when the post-conviction challenge involves a claim that the state statutory scheme for testing is itself unconstitutional, the court said in an opinion by Judge Stanley Marcus.

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Posted in Defense lawyering (good and bad)

Ten Important Facts About the Wrongful Conviction of Carlos DeLuca, an Innocent Man Executed in Texas…

Posted on May 17, 2012 by | 2 comments

From the Daily Beast:

Los Tocayos Carlos: An Anatomy of a Wrongful Execution is a haunting chronicle of how Carlos DeLuna, a poor Hispanic man with a history of petty crime and the intelligence of a child, was wrongfully convicted and then executed for the 1983 murder of Wanda Lopez, a convenience-store clerk in Corpus Christi, Texas.  An entire issue of the Columbia Human Rights Law Review has been dedicated to publishing the tale of how DeLuna was put to death and the real killer, a brutal thug named Carlos Hernandez, continued to roam free. The remarkable thing about the narrative is the utter banality of it in what the authors describe as a “case of the obscure accused of murdering the obscure.” Here are 10 of the most gripping and shocking parts of this tragic story.

Ignored By 911

Wanda Lopez was a divorced single mother and high-school dropout who worked the 3–10 p.m. shift behind the register at the Sigmor Shamrock gas station and convenience store. It was in a rough neighborhood inCorpus Christi, located next to a strip club called Wolfy’s. At 8:09 p.m., she called 911 in a panic. She immediately asked “[C]an you have an officer come to 2602 South Padre Island Drive? I have a suspect with a—a knife inside the store … He’s a Mexican. He’s standing right here at the counter.” Instead, the 911operator, Jesse Escochea, who wasn’t supposed to be answering calls and just picked up the phone because everyone else was occupied, quizzed her for 77 seconds because he thought she had “an attitude.” He didn’t dispatch a police car until after Lopez had been fatally stabbed in her chest while asking for help. It later emerged that the reason for her “attitude” was that she had previously called 911 about the same man loitering outside the door and was told to immediately call back if the man entered. If the regular 911 operator had answered, help would have come right away and Wanda Lopez might not have been stabbed.

The Arrest

Eyewitnesses saw two different men running in different directions near the gas station. The only actual witness to the crime saw the stabbing and then watched a Continue reading →

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Posted in Book recommendations/discussion, Capital punishment, Defense lawyering (good and bad), Forensic controls

Cuts to Legal Aid in NZ a Threat to Forensic Science and Justice?

Posted on May 3, 2012 by | 1 comment

An interesting short comment has appeared on The Forensic Group site (New Zealand based), questioning whether the cuts to legal aid in that country are having a detrimental impact on the commissioning of forensic tests. It also warns that some of the ‘best’ defence lawyers in New Zealand are moving out of criminal law because of the funding shortages. As they explain:

“The problem with losing good criminal defence lawyers is that access to justice will be compromised, there will be more appeals and, potentially, miscarriages of justice.”

Some very worthwhile questions asked…. read the full post here…

Legal Aid costs and forensic science: the cost of justice?

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Posted in Australia/New Zealand, Defense lawyering (good and bad), Forensic controls, Junk science

How Bad Lawyering Advances Wrongful Conviction: The Case of Jamel Parker

Posted on April 18, 2012 by | Leave a comment

We place tremendous emphasis on prosecutorial tunnel vision, and rightly so. However, bad lawyering by defense counsel rarely ever attract the same condemnation. Bad representation contribute significantly to incidences of wrongful convictions or miscarriage of justice, except that it hardly get mentioned. As Jamel Parker picks up the pieces of his appeal and plans to challenge his conviction, an important lesson needs to be learnt: that good representation is key to the fair dispensation of justice. I think this is a shared responsiblity. It lies not only with the accused person, it behooves the bench at every stage of the trial to ensure that an accused person is getting the best at every stage of the trial. Again, lax professional conduct rules; the failure of disciplinary boards to take seriously complaints by clients of bad lawyering, play a major role.  We hope that Jamel’s second bite of the cherry (his proposed appeal) will ensure that all the facts and law are properly placed before a judge and jury. Read more herehttp://www.thepetitionsite.com/1/free-jamel-parker-wrongful-convicted/

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Posted in Defense lawyering (good and bad), Editorials/Opinion

Defense Lawyer Tunnel Vision…

Posted on April 18, 2012 by | 2 comments

Carrie Sperling

Carrie Sperling of the Arizona Justice Project has posted Defense Lawyer Tunnel Vision:  The Oft-Ignored Rule Defense Counsel Plays in Wrongful Convictions on SSRN.  Full paper here.

The abstract states:

This article discusses the sometimes forgotten role that defense lawyers play in wrongful convictions. Often, strong cases of actual innocence are thwarted by defense lawyers’ failure to preserve a defendant’s procedural avenues for relief. The article reminds lawyers that procedural errors have long-lasting consequences for the innocent who have been wrongly convicted.

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Posted in Defense lawyering (good and bad), Reforming/Improving the system, Scholarship

Lawyers in UK claim new rules to ‘speed up’ trials resulting in miscarriages of justice

Posted on April 15, 2012 by | Leave a comment

A new policy, called ‘Stop Delaying Justice’, introduced to ‘streamline’ trials in the lowers courts in England and Wales (the Magistrate’s Courts), may be leading to an increase in miscarriages of justice according to lawyers. The strict time restrictions are forcing people to plead guilty without seeing the evidence against them first. In one case, a defendant was asked to plead guilty before seeing crucial fingerprint evidence. He refused, and the fingerprint evidence later proved his innocence. Read more about the investigation into such cases on the BBC:

Lawyers claim new policy causes miscarriages of justice

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Posted in Defense lawyering (good and bad), Inquisitional and adversarial systems of justice, Prosecutorial conduct (good and bad), Reforming/Improving the system, United Kingdom

Police study shows how stress distorts memory

Posted on April 12, 2012 by | Leave a comment

As contributing editor Phil Locke noted in a post yesterday, eyewitness misidentification is the leading cause of wrongful convictions. The reason, the experts and defense attorneys argue, is that memory is extremely fallible and malleable. Police and prosecutors insist otherwise. They argue that a witness to a crime, or a victim of one, is going to remember quite clearly what happened and who was involved.

Now, a new study of what someone involved in a stressful, potentially life-threatening situation, remembers backs up those who argue that witnesses are prone to mistakes. What sets this study apart, however, is that the participants in the study were cops.

As this article about the study reports, “After traumatic incidents, some officers remember things that didn’t happen. Some don’t remember things that did happen. Others confuse the sequence of events.”

This is exactly what researchers and defense attorneys have been saying about civilian crime witnesses and victims for decades. It’s nice to have a police study back them up.

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Posted in Defense lawyering (good and bad), Eyewitness identification

Central Park case showed how media fuels injustice

Posted on April 10, 2012 by | Leave a comment

Sarah Burns’ book The Central Park Five: A Chronicle of a City Wilding, is one of the best books on a wrongful-conviction case in recent years. The documentary she is now producing with her father, Ken Burns, promises to be equally compelling.

The book and film focus on the wrongful conviction of five black and Latino teenagers in 1990 for the particularly vicious assault and rape of a white woman while jogging through New York’s famed Central Park on the evening of April 20, 1989.

The case set off a media frenzy in the crime-plagued city that soon spread across the United States after police announced that the five youths had confessed that they had committed the rape as one of a series of random assaults they and other teens committed in the park that night, a process they supposedly called “wilding.”

Burns adeptly dissects this case the skill of a surgeon. She shows how police jumped to conclusions and then manipulated and intimidated the five boys into highly inconsistent confessions that were greatly at odds with the facts. In the process, Burns shows how the police ignored the similarities between the rape of Continue reading →

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Posted in Book recommendations/discussion, Defense lawyering (good and bad), Editorials/Opinion, Exonerations, False confessions, Film/Cinema