Category Archives: Habeas Corpus

Comment on the Nature and State of the (US) Justice System

While writing the latest post about Jack McCullough‘s exoneration, and while reading Courtney Bisbee‘s latest filing with the US District Court for Arizona, I got to reflecting on my experiences with the justice system over the past eight years, and I thought I would share some of my (unvarnished) observations. Clearly, this will be very editorial. It will probably help to understand my comments to know that I am not an attorney. I am an engineer by training, and that’s what I did for my entire working career – until I started doing innocence work pro bono. So I see the justice system with the naivete’ of someone who is an “outsider” and is not a functionary of the system; but I do see the system as someone who has spent his entire life founded in objective truth and logic and fact. Again, this article will be editorial in nature, and represents my views and only my views. It will also be pretty bleak; however, I see no viable path to fixing the monster we’ve created over the course of multiple decades of politics and the frailties of human nature. This has been bottled up inside me for some time, and the cork has finally popped. And just for reference, my definition of the justice system includes the law, legislators, judges, prosecutors, defense attorneys, and the police.

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Courtney Bisbee Granted Evidentiary Hearing !

Courtney Bisbee was a responsible, law-abiding, hard-working single mother working in the Scottsdale, AZ school system in 2004 when she was sucked into the criminal justice system by false allegations of “improper touching” of a minor.

For background, please see our previous post about this case: A Broken Justice System – Cases in Point – Part 2 – The Case of Courtney Bisbee.

There is recent significant news. Federal District Court Magistrate Judge David Duncan has granted Courtney not just a hearing, but an evidentiary hearing. The two day evidentiary hearing is scheduled for March 14 and 15, 2016.

As we have mentioned before, Courtney filed an absolutely compelling habeas petition with the court 3 1/2 years ago. At the time, former Federal District Chief Judge Roselyn O. Silver, who is now on the 9th Circuit Court of Appeals, reviewed Courtney’s initial petition for Writ of Habeas which was filed April 2012. Silver responded within one business day stating Courtney had 13 viable claims. To date, there has been no further action on Courtney’s habeas petition. Hopefully, the exculpatory evidence cited in Courtney’s habeas petition will be allowed and considered before the court during the hearing.

It comes as no surprise that the prosecution has been fighting ‘tooth & nail’ to keep the hearing from happening. They immediately filed with the court a Motion for Reconsideration to vacate Courtney’s evidentiary hearing, which Judge Duncan rejected. They continue to work furiously to scuttle Courtney’s chance to finally, after more than 10 years, receive justice. For example, the state writes, “Indeed, to proceed with an evidentiary hearing, when any new evidence presented cannot be considered by the federal courts pursuant to Pinholster, would be a waste of state, federal, and judicial resources”. Excuse me? This statement is an insult to the justice system. The state will spend any amount of “resource” when pursuing a conviction. Why now, with actual justice in sight, are they suddenly worried about the dollars and cents?

We can only hope that actual truth and justice will prevail.

Wednesday’s Quick Clicks…

Wednesday’s Quick Clicks…

Wednesday’s Quick Clicks…

Monday’s Quick Clicks…

Tuesday’s Quick Clicks…

In Canada, a wrongfully convicted man has been exonerated 45 years after being convicted of manslaughter…

Lincoln Caplan argues in the New Yorker that a recent SCOTUS ruling, overturning a Ninth Circuit decision calling for the retrial or release of a California inmate on death row, will have dire effects on prisoner rights…

New evidence of prosecutorial misconduct may be the key to overturning former No Limit rapper’s manslaughter conviction…

In Kansas, protesters aim to raise awareness for those who are wrongfully convicted…

Monday’s Quick Clicks

California Anti-Junk Science Forensics Bill Signed Into Law

Mike Bowers, on his blog Forensics in Focus, has posted the news that a new “anti-junk science forensics” bill has been signed into law in California.

The law permits post conviction defendants the ability to contest expert testimony that was presented against them at trial. In other words, convictions in which experts have either repudiated their past testimony, or used forensic “science” that is later deemed faulty by legitimate research, are subject to later proceedings reversing that conviction.

This is a huge deal, because it prevents prosecutors and judges from just using old case law as an excuse for ignoring habeas corpus appeals expressing new forensic research and attitudes.

Monday’s Quick Clicks…

  • Exoneree Clarence Harrison makes music with his new album “Life Sentence.”
  • Pennsylvania Innocence Project client Han Tak Lee walks free in Pennsylvania on Friday after his arson conviction is thrown out by a federal judge
  • After long battle, California Innocence Project client Timothy Atkins declared factually innocent and to receive state compensation for his wrongful conviction
  • Steve Drizin writes about the joint effort of Northwestern U and U Michigan to exonerate Jamie Lee Peterson
  • Mississippi Innocence Project writes about the potentially false testimony in a number of cases by medical examiner Steven Hayne
  • Original detectives back bid by Michigan Innocence Clinic to get new trial for Jeff Titus
  • Wisconsin Innocence Project seeks DNA testing in 1982 murder case

98-year-old woman seeks to overturn 1950 spying conviction

Hysteria often breeds wrongful convictions. The anti-communist hysteria of the 1950s McCarthy era undoubtedly led to some miscarriages of justice, and Miriam Moskowitz says her espionage conviction was one of them. Now 98, Moskowitz says she wants to clear her name while she still has time, and has asked a federal judge to throw out her 1950 conviction. You can read about the case here.

Interesting SCOTUS Forensics Case….

Today, in Hinton v. Alabama, the U.S. Supreme Court found the trial attorney’s failure to request funding for a sufficient expert to challenge the State’s ballistics experts constituted ineffective assistance of counsel.  Opinion here.

Holiday Quick Clicks…

  • clickIn Wisconsin, the governor says he’ll issue no “innocence pardons” because it is too hard to pick and choose who deserves attention and who doesn’t
  • Why is a Texas prosecutor still practicing law after having been found to have committed egregious misconduct to wrongfully convict Anthony Graves?
  • Philly police to implement sweeping interrogation reforms January 1, 2014
  • Virginia man Jonathan Montgomery says exoneration is “best Christmas present ever.
  • Details about the Little Rascals Daycare case in North Carolina, another of the alleged daycare hysteria wrongful conviction cases
  • Nora Wall, wrongfully convicted Irish nun, in talks with Irish government about compensation
  • Connecticut federal judge finds that Scott Lewis was wrongfully convicted as a result of Brady violations

Tuesday’s Quick Clicks…

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Thursday’s Quick Clicks…

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  • Exoneree says arrestee names should remain confidential
  • Murder conviction tossed in Georgia
  • An epidemic of prosecutor misconduct
  • Exoneree Fernando Bermudez to kick off ‘Dilemmas of Justice’ lecture series Sept. 24th
  • On Monday, the 9th U.S. Circuit Court of Appeals upheld a lower court ruling that freed a California man who was wrongfully convicted in 1999 of being in possession of a concealed knife under California’s Three Strikes Law.  Daniel Larsen was convicted based largely on eyewitness identification. Two officers testified that they saw Larsen throw a knife under a car located in the parking lot of the Golden Apple Bar in Los Angeles. Because he had prior felony convictions, Larson was sentenced to serve 28 years to life in prison.  Larsen spent nearly 14 years in prison before his conviction was reversed by a U. S. District Court judge in 2010 after the California Innocence Project, which began representing Larson in 2002, found witnesses who testified seeing a different man holding the knife.

New Scholarship Spotlight: Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases

Professor Stephanie Roberts Hartung has posted the above-titled article on SSRN.  Download here.  This article is on an important issue that causes serious problems for innocent habeas petitioners.  The abstract states:

The DNA exoneration data stemming from the Innocence Movement exposes a harsh reality in our criminal justice system: existing post-conviction review procedures fail to accurately identify and remedy wrongful convictions of the innocent. While the layers of review available upon conviction are seemingly exhaustive, in fact, the factually innocent prisoner is confronted with little more than a façade of protection. At the federal habeas stage, several provisions of the Anti-Terrorism and Effective Death Penalty Act [AEDPA] operate to foreclose viable claims of innocence. Further, the federal courts entertain second or successive habeas petitions in a piecemeal fashion, if they do so at all. This “piecemeal approach” negatively impacts prisoners raising claims of factual innocence, in light of their typically pro se status and incarceration. In reviewing each successive habeas petition in isolation, without regard to previous claims, the courts often miss the forest for the trees, allowing innocent prisoners to remain in custody.

This Article discusses the piecemeal problem inherent in federal habeas review procedures, provides a case illustration, and advocates for a broader reading of the “evidence as a whole” language in AEDPA’s 28 U.S.C. Section 2244(b)(2). This broader interpretation, already adopted by the Fourth Circuit, would allow courts to review a petitioner’s successive habeas claims in the aggregate, and thus, more readily identify cognizable claims of factual innocence. This Article contributes to the ongoing debate as to how the competing post-conviction interests of finality and fairness should be recalibrated in light of the DNA exoneration data brought forth by the Innocence Movement.

 

Friday’s Quick Clicks…

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  • In Vermont, an aggravated murder charge against John Grega, a Long Island, N.Y., man charged with killing his wife in 1995, has been dismissed, because of difficulties with additional DNA testing. The dismissal of the second murder charge against Grega comes a year after his 1996 conviction was dismissed, and a new trial ordered, because of new DNA evidence. Windham County State’s Attorney Tracy Shriver announced late Wednesday that murder charges against Grega would be dismissed without prejudice because of difficulties finding a lab to do necessary DNA matching of evidence taken from Christine Grega’s body.
    Shriver, in a joint statement with Vermont Assistant Attorney General Cindy Maguire, said they “remain committed to continuing this investigation to seek justice for Christine Grega and her family.”  In 2012, new DNA testing had revealed the presence of an unknown man’s DNA in her body, the discovery of which resulted in a judge ordering a new trial.
  • A U.S. judge ordered a new trial Wednesday for a Philadelphia man sentenced to death in 1992 for killing a high school student for her gold earrings.  U.S. District Judge Anita Brody found that James Dennis’ conviction was based on dubious eyewitness testimony, bad police work and a poor defense by his lawyer, The Philadelphia Inquirer reported. She said he must be freed if he is not retried within six months.
  • In India, Supreme Court limits right of intermediate courts to overturn acquittals

Justice Scalia: Ensuring Innocent People Get Out Of Prison Is A ‘Faustian Bargain’

scalia-e1364082903791From thinkprogress.org:

A man who may be locked up for a murder he did not commit should not be allowed to challenge his conviction, according to Justice Antonin Scalia and his three most conservative colleagues. And three members of the Supreme Court seem to believe that most people jailed due to unconstitutional convictions should have no recourse to the federal courts. At least, that’s what emerges from a four justice dissenting opinion written by Scalia in a case dealing with the rights of state prisoners who may be “actually innocent” of the crime they were convicted of committing.

McQuiggin v. Perkins is a fairly unusual case. After being sentenced to life in prison for murder, Floyd Perkins spent years gathering three affidavits from witnesses corroborating his claim that another man committed the crime. Yet he sat on this new evidence for nearly six years before presenting it to a federal court. Justice Scalia’s dissent claims that a one year statute of limitations prevents Perkins from presenting six year-old evidence that he may be innocent. Justice Ruth Bader Ginsburg’s majority opinion holds that “actual innocence” may overcome this one year time limit, although she also requires prisoners in Perkins’ shoes to overcome a very high bar before their claims of innocence may succeed in federal court.

Beyond the narrow issue presented by this case, however, the final paragraphs of Scalia’s opinion — three paragraphs that conservative Justice Samuel Alito pointedly chooses not to endorse — suggest a massive contraction of prisoners’ rights. Earlier in his opinion, Scalia claims that state prisoners’ right to challenge their conviction in federal court was “radically expanded in the early or mid-20th century to include review of the merits of conviction and not merely jurisdiction of the convicting court.” This is likely a reference to a controversial theory, championed by a young future Chief Justice William Rehnquist and later promoted by a conservative law professor named Paul Bator, that federal courts traditionally could not overrule state convictions so long as the defendant enjoyed minimal safeguards such as “counsel to argue all his points to the trial court, [access to] the state appellate courts” and the ability to seek Supreme Court review.

Scalia’s final paragraphs claim that the practice of allowing broad challenges to unconstitutional state convictions, including cases where a state prisoner may in fact be innocent, was a “Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions.” As Scalia warns, permitting state prisoners to challenge their conviction in federal court leads to “floods of stale, frivolous and repetitious petitions [which] inundate the docket of the lower courts and swell our own.”

Justice Scalia is correct that judges have to do more work if potential innocents are allowed to seek vindication. Unlike prisoners locked up for crimes they did not commit, however, those judges will also get to go home every day.

Cook County Prosecutors Drop All Charges Against Nicole Harris

The Center on Wrongful Convictions (CWC) at Northwestern Law reports today that Cook County prosecutors have dropped all charges against Nicole Harris, who was wrongfully convicted of the May 2005 strangulation murder of her 4-year-old son, Jaquari Dancy. Harris served seven years of a 30-year sentence before a federal appeals court reversed the conviction. As reported last February on this blog (here) and (here) the court opined that Jaquari’s older brother, Dante—five at the time—should have been permitted to testify. Dante had told police that his brother accidentally strangled himself with a bed sheet while playing and that his brother’s death was an accident. Continue reading

Monday’s Quick Clicks…

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  • Exoneree Brian Banks at rookie camp of the NFL’s Atlanta Falcons
  • Although most in the Czech Republic are in favor of reinstating capital punishment, risk of wrongful convictions is the leading factor citing against it
  • More on last week’s Perkins decision by SCOTUS