Category Archives: Editorials/Opinion

Opinion piece references impact of plea bargains on wrongful conviction

Posted on March 12, 2012 by | 1 comment

Writer Michele Alexander raises the wrongful conviction issue as it relates to plea bargaining. As an example, she writes, Erma Faye Stewart, a single African-American mother of two, arrested in 2000 in a drug sweep in Hearne, TX., claimed innocence, but was very worried about her children’s care while she was in jail. Her court-appointed lawyer told her to take the prosecutor’s deal: plead guilty for probation. She pled, was sentenced to 10 years’ probation, and a $1,000 fine. But now she was a felon. Barred from food stamps, evicted from public housing and homeless, her children were taken and placed in foster care. Read the full New York Times op-ed piece here.

More than 90 percent of U.S. criminal cases are not settled in a trial or by a jury. The plea bargaining system is seemingly essential to a criminal justice system that incarcerates about one in 100 adult Americans. But how often do innocent people plead to avoid the costs—in time and resources—of pursuing a trial or to avoid the risk of conviction and incarceration?

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Posted in Editorials/Opinion, False confessions

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Shaken Baby Syndrome “Science” (Really??) — REDUX

Posted on March 10, 2012 by | Leave a comment

There were some questions generated from my last post on this, so I wanted to provide some clarification about why I am skeptical regarding biomechanical studies (dummies, simulation, and modeling) to determine the “cause and effect” relations of triad symptoms.

To examine more closely the deficiencies with biomechanical studies, modeling, and simulation, let’s look at a particular example.  Let’s take the example of one of the “triad” symptoms, retinal hemorrhage.  What is solely responsible for retinal hemorrhage from head impact is the acceleration experienced by the retina and fluids in contact with the retina, not the skull.  Skull impact acceleration forces will be transmitted (and modified) through various tissues and fluids to the retina, and what the retina experiences will be different than what the skull experiences.  However, as far as I know, we have no way to directly measure acceleration of the retina, so we have to settle for measuring acceleration of a simulation or model of the skull, and infer how that gets transmitted to the retina.  Therein lies part of the problem, and a major reason why modeling or simulating the situation is so difficult.  And in fact, measuring skull acceleration is no easy task in itself, because it will depend upon the “flexibility” or “compliance” of any particular skull.  I would guess that an infant skull with the fontinel still open would be more compliant than one with the fontinel closed, and certainly more compliant than a fully formed adult skull.  (Side note.  Some might say, “Use monkeys or cadavers for these studies.”  However, the physiology of animal brains and skulls is different, and cadavers have no blood pressure, muscle tone, or reflex reactions.)

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Posted in Editorials/Opinion, Forensic controls, Junk science

What should Americans expect of public officials AFTER a wrongful conviction?

Posted on March 10, 2012 by | 9 comments

In most endeavors a costly mistake results in immediate efforts to identify what went wrong and how it can be prevented. Curiously, in the criminal justice system, officials too often respond to the tragic error of convicting an innocent with defensiveness and denial. Such miscarriages of justice should prompt important improvements in the system, but these will be derailed or hard won until Americans clarify our expectations of officials after justice stumbles.

Following a wrongful conviction, public officials can go a long way toward restoring trust in the system by following a 7-step process—mandated by both decency and public relations 101—that includes (1) honestly acknowledging that a Continue reading →

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Posted in Editorials/Opinion, Exonerations, False confessions, Reforming/Improving the system

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‘Wrongful Convictions and the Accuracy of the Criminal Justice System’

Posted on March 9, 2012 by | 3 comments

The above title is taken from the feature article by Prof. H. Patrick Furman. (Patrick is a Clinical Professor of Law in the Legal Aid and Defender Program; and a Director of Clinical Programs at the University of Colorado School of Law). It is amazing how the issues we contend with today has always been there with us. The causes, effects, consequences and impact has always been the same. 

It’s like we never noticed. Yes, never noticed, until we look more intently at the skewed nature of justice; and how some unfortunate folks are at the receiving end of society’s negligence, indifference and sometimes, outrightly living in denial. Prof. Patrick’s article is well researched. Read the entire piece in ‘The Colorado Lawyer’ here http://lawweb.colorado.edu/profiles/pubpdfs/furman/03SeptTCL-Furman.pdf

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Posted in Book recommendations/discussion, Editorials/Opinion, Scholarship

From Timbuktu to Kalamazoo, Microscopic Hair Comparison Still (Unfortunately) Has Adherents

Posted on March 7, 2012 by | 4 comments

Scott Baldwin, convicted of murder in 2002 and now represented by the Wisconsin Innocence Project

This story about a Wisconsin Innocence Project client Scott Baldwin (convicted in 2002 of murder in Michigan) discusses how the judge recently granted DNA testing of hairs that were found clutched in the murder victim’s hand (the evidence suggested there had been a struggle between the perpetrator and the victim).  What was striking to me in the article (although sadly, not surprising) is that the prosecutors opposed DNA testing of the hairs on the ground that the hairs had been microscopically examined at the time of trial, and determined to have come from the victim himself.  Thus, the prosecutors argued, there is no need for DNA testing to further confirm what we all already know.

If anything has proven to be unreliable junk science, however, it’s microscopic hair comparison (it’s perhaps up there with bite mark evidence in terms of unreliability).   We recently had a case in Ohio, for example, where the state’s Continue reading →

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Posted in Editorials/Opinion, Forensic controls, Junk science, Prosecutorial conduct (good and bad), Uncategorized

Shaken Baby Syndrome “Science” (Really ??)

Posted on March 6, 2012 by | 5 comments

I’ve been reading lately about biomechanical studies that have been, and are being, done to try to quantify the physical forces and accelerations required to inflict damage inside the human infant skull sufficient to cause “triad” symptoms (subdural hematoma, retinal hemorrhage, diffuse edema or diffuse axonal injury).

Dr. Carole Jenny, queen of the SBS protagonists, has dedicated her career to doing research with “bio-fidelic” dummies in search the answers to these questions.  Other researchers have attempted to use the power of computer modelling, employing the technique of finite element analysis, to answer the same questions.

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Posted in Editorials/Opinion, Forensic controls, Junk science

The NAS Report – so where are we now?

Posted on March 6, 2012 by | 3 comments

Since the publication of the NAS report in 2009, Strengthening Forensic Science in the United States: A Path Forward, prosecutors and the forensic science community have “circled the wagons,” and have been pushing back mightily.  Acceptance and adoption by the courts has been spotty at best.  So where do things stand today?

The (US) National Association of Criminal Defense Lawyers (NACDL) issues a bi-monthly publication called “The Champion.”  In the January/February issue there is an article titled “A Path Forward: Where Are We Now?”  This includes the author’s (Jennifer Friedman) perspective on the situation, along with some practical pointers for defense attorneys in using the NAS report in their case strategies.

This issue of The Champion is not yet available on the NACDL website (www.nacdl.org), so I include the article here:

Champion – NAS

Phil Locke

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Posted in Editorials/Opinion, Forensic controls, Junk science

The galvanizing Troy Davis case taught lessons beyond death penalty

Posted on March 3, 2012 by | 11 comments

Massive attention in America and internationally on the Troy Davis case appropriately focused on the death penalty, but this case was a call to action regardless of one’s position on capital punishment. The troubling uncertainty that followed Troy Davis to the death chamber on September 21, 2011, should prompt widespread recognition that the U.S. criminal justice system can do better, and Americans must require it.

When Davis’s guilt was called into question following the recantation of most key witnesses, thousands protested but were unable to stop the train that had left the station twenty years earlier. That’s when a jury, after weighing evidence Continue reading →

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Posted in Capital punishment, Commissions/Innocence Commissions/Governmental Case Review Agencies, Editorials/Opinion, Events, Eyewitness identification, Police conduct (good and bad), Reforming/Improving the system

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Arson Investigation – After Decades of Junk Science

Posted on March 2, 2012 by | 19 comments

Arson is, of course, the intentional setting of a fire.  Arson is determined ex post facto by a “fire investigator”.  Fire investigators have historically  been people who started their career with a fire department, and inherited the job from a predecessor.  Training was largely “on the job” as a result of mentoring by superiors.  It might also be common for novice fire inspectors to attend a one week training course.  The body of knowledge concerning the causes, and locations of origin, of fires was anecdotal and passed from one generation of fire inspectors to another as folklore. Some have even compared the “old folklore science” of fire investigation to witchcraft.

I’m happy to report that true fire science has made great strides over the last two decades, and what it has determined is that most of the “rules of thumb” that were the “stock in trade” of fire investigators for decades were wrong.

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Posted in Editorials/Opinion, Forensic controls, Junk science

Thoughts on the Oklahoma Innocence Collaboration Act

Posted on March 2, 2012 by | Leave a comment

The newly formed Oklahoma Innocence Project, headed by well-known innocence attorney Tiffany Murphy, is working with legislators to pass the Oklahoma Innocence Collaboration Act.  A House subcommittee passed the bill 9-0 last month, and it now is heading to Appropriations and Budgets Committee.  The bill appears to set up a mandated structure where the Oklahoma Innocence Project could send cases it felt involved problematic scientific analysis for review to the forensic labs at University of Central Oklahoma.  The university department would analyze the case and write a report, and then the case would be sent to the Oklahoma State Bureau of Investigations, which would review the findings and take action if necessary.

I wonder how this system will work in practice.  The structure seems to take the case out of the adversarial system.  Instead of relying on their own experts to evaluate the case, and then present those findings in court, the case will be reviewed by state officials (at the Oklahoma Innocence Project’s referral), who, as anyone in this field knows, often suffer from tunnel vision or are loathe to admit a mistake.  The attacks by prosecutors last week against the North Carolina Innocence Commission are just one recent example of this problem.

But the following quote from the bill’s sponsor caught my attention:

“We’re the only state that doesn’t allow people that are incarcerated when new evidence comes along to use that evidence to prove their innocence.”

Can this actually be true?  Oklahoma doesn’t have a “motion for new trial” rule or Continue reading →

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Posted in Commissions/Innocence Commissions/Governmental Case Review Agencies, Editorials/Opinion, Forensic controls, Inquisitional and adversarial systems of justice, Legislation, Project Spotlights

Commentary: New York’s DNA Database Bill and Innocence Reforms

Posted on March 2, 2012 by | Leave a comment

New York’s pending bill to expand collection of DNA samples for the database to some misdemeanor and all felony arrestees is causing quite a stir.  As previously reported, those supporting innocence reforms have asserted that the collection of DNA should not be expanded without including reforms to protect the innocent, such as eyewitness identification reforms and requirements to record interrogations.  But NY Governor Cuomo is fighting back, saying:

“I don’t want to play the normal Albany game with this bill…which is (to say), ‘Well, let’s use this bill to accomplish unrelated things that we want to get done,’ right? This bill is about DNA and the use of DNA, and the use of DNA to prove guilt or prove innocence. And this is the bill that we want to pass. … Let’s not make this bill a vehicle to debate other issues.”

Innocence reforms are “unrelated” to DNA testing?  If DNA has taught us anything over the past 20 years, it’s that the system has flaws, and that those Continue reading →

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Posted in Editorials/Opinion, Legislation, Reforming/Improving the system

The High Costs to Society (including financial) of Wrongful Conviction

Posted on February 28, 2012 by | 1 comment

Here a link to a great article by Rob Warden and John Conroy about the costs of wrongful conviction in Illinois.  One example:  Wrongful convictions cost Illinois taxpayers $214 million dollars between 1989 and 2010.  The article contains lots of great stats and charts.  Check it out.

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Posted in Editorials/Opinion, Reforming/Improving the system

Prosecutors Attack North Carolina’s Innocence Commission, And Demand Changes, After it Exonerates Wrongfully Convicted

Posted on February 28, 2012 by | 3 comments

On the heels of having exonerated several inmates in North Carolina, prosecutors are challenging the laws establishing and setting the standards for North Carolina’s Innocence Inquiry Commission.  Prosecutors want the burden for inmates to obtain relief raised from “clear and convincing” evidence of innocence to proof of innocence “beyond a reasonable doubt.”  They also want a chance to cross-examine defense witnesses at an earlier stage in the investigative process, rather than at the 3-judge panel hearing that occurs after initial investigation.  A law to make these changes passed the House last year, but died in the Senate.   Prosecutors are beating the drum again this year, after the Innocence Inquiry Commission exonerated two men a few months ago.

Christine Mumma, director of the North Carolina Center on Actual Innocence opposes the changes.  So does attorney Brad Bannon, who serves on the board of N.C. Legal Prisoner Services.  He says, “Simply put, these changes would make it more difficult for innocent, wrongly convicted people to gain their freedom. That turns the entire idea of the Innocence Commission, if not justice itself, upside down.”

Indeed, why anyone would want an inmate to remain in prison–or on death row–when there is clear and convincing evidence of his innocence, is hard to fathom.  Changing the law to require proof of innocence “beyond a reasonable doubt” would make exonerations extremely difficult to attain.  Proving that someone committed a crime “beyond a reasonable doubt,” which is what prosecutors face at trial, is easier than proving innocence “beyond a reasonable doubt.”  We all know that proving a negative (that he didn’t do it) is nearly impossible to do, and is much more difficult than proving a positive (that he did it).   Continue reading →

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Posted in Commissions/Innocence Commissions/Governmental Case Review Agencies, Editorials/Opinion, Reforming/Improving the system

New York Times urges open files in U.S. federal cases

Posted on February 27, 2012 by | Leave a comment

A New York Times editorial yesterday properly urged that the Justice Department require federal prosecutors’ files be open to the defense. While Brady v Maryland requires disclosure of exculpatory evidence, too often prosecutors at all levels skirt this requirement and courts dismiss the undisclosed information as not “material,” a subjective call that can be flawed as revealed in many DNA-proven wrongful convictions.

As the editorial points out, 96% of federal cases are resolved in plea bargains. The lax application and court enforcement of Brady  puts defendants at the considerable disadvantage of not knowing the evidence against them in plea negotiating. The editorial advocates an open files federal rule, which would be an important example for the states.

Ohio and North Carolina were mentioned as two states that now have open files rules. At the state level this requires leadership; Ohioans can thank the late Chief Justice Thomas Moyer, who championed this rule change, adopted by the high court’s rules committee in July 2010.

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

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Monday’s Quick Clicks…

Posted on February 27, 2012 by | 1 comment

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Posted in Capital punishment, Compensation/Exoneree compensation, Defense lawyering (good and bad), Editorials/Opinion, Events, Police conduct (good and bad), United Kingdom

Malaysia & Singapore: Criminal Legal Representation and Pro Bono Debates

Posted on February 25, 2012 by | 1 comment

It is often thought that if one is truly innocent, one has nothing to fear from the legal process. An innocent accused only needs to tell his or her side of the story truthfully. Legal representation may not be necessary. This is not true.  Many confess to crimes they did not commit, many are confused by the unfamiliar legal process, and mistakes may be made during investigations.

In Malaysia and Singapore, there has been increased debate on pro bono and criminal legal representation. Presently, both authorities provide criminal legal representation for capital cases. For other offences, legal aid is provided through pro bono schemes run by the legal bar and lawyers. The Malaysian government is working on a general criminal legal aid plan, and Singapore’s leaders have recently emphasised the need to promote pro bono work among lawyers.

Such an emphasis on pro bono is inspiring; it reflects a commitment to the less fortunate in society. However, it may also be time to consider the need for State-run or State-funded criminal legal aid schemes. Access to criminal legal representation is too important to be left to self-help or private initiatives alone. Due to the potentially serious consequences and social stigma resulting from a criminal conviction, the State should serve as guarantor of an accused person’s right to legal representation in all criminal matters. In doing so, the State sends the message that it stands alongside the accused person, even as it calls the latter to account.

http://www.malaysianbar.org.my/legal/general_news/legal_aid_plan_put_on_hold.html

http://www.straitstimes.com/BreakingNews/Singapore/Story/STIStory_768607.html

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

After a wrongful conviction, shouldn’t there be a reinvestigation?

Posted on February 25, 2012 by | 4 comments

“As far as we know, not a single effort has been made to apprehend the actual perpetrators of that homicide. Including an admitted confession from a perpetrator, who after having been named as a perpetrator in this offense – law enforcement made no effort to apprehend him – he went ahead and killed another person. He is currently incarcerated in Nevada for having shot and killed a taxi driver there. I don’t understand law enforcement’s abdication of their responsibility here.” Linda Starr, Legal Director of the Northern California Innocence Project (NCIP) was referencing the case of Maurice Caldwell in an interview with Rina Palta of NPR’s KALW local public radio in San Francisco.

In about 45 percent of DNA-proven wrongful convictions, the real perpetrator is also identified. But, what about cases in which the DNA excludes the wrongfully convicted but does not find a match in state or national criminal DNA databases? Or what about cases such as that of Maurice Caldwell, who spent 20 years in prison before Superior Court Judge Charles Haines, ruling that Caldwell had been represented by ineffective counsel, ordered a new trial. His attorney has since been disbarred for his conduct in other cases.

Caldwell, who steadfastly maintained his innocence, was convicted of murder on the testimony of a sole witness, now deceased. The identification procedure was Continue reading →

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Posted in Compensation/Exoneree compensation, Editorials/Opinion, Eyewitness identification

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Saturday’s Quick Clicks….

Posted on February 25, 2012 by | 2 comments

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Posted in Australia/New Zealand, Capital punishment, Editorials/Opinion, False confessions, Junk science

Gallery

Let’s Talk About FINGERPRINTS

Posted on February 24, 2012 by

This gallery contains 5 photos.

Fingerprints, more technically known as “friction ridge analysis”, have been around for well over 100 years; at least since Francis Galton published his seminal work simply titled “Finger Prints” in London in 1892.  In fact, fingerprints are still analyzed according … Continue reading →

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The polygraph and false confessions

Posted on February 23, 2012 by | 13 comments

False confessions are a leading cause of wrongful convictions. According to the Innocence Project, about 25 percent of the documented DNA exoneration cases involved incriminating statements, full confessions or guilty pleas by innocent suspects.

The polygraph is an important tool in the extraction of false confessions. Despite the well-documented inaccuracy of the polygraph, police in North America (less so in Europe and other areas) still rely heavily on the “lie detector” and its even less accurate cousin, the voice stress analyzer, in the investigative process.  If an innocent suspect fails the polygraph exam, police will use the results to persuade him or her that they must be guilty. In some cases, police will tell the suspect that they failed the exam even when they didn’t in an attempt to obtain a confession.

Given the polygraph’s inaccuracy and record of being used to obtain confessions, I am continually amazed to come across cases in which defense attorneys Continue reading →

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Posted in Defense lawyering (good and bad), Editorials/Opinion, Exonerations, False confessions, Inquisitional and adversarial systems of justice, Junk science, Police conduct (good and bad), Uncategorized