Category Archives: Inquisitional and adversarial systems of justice

Wrongful Convictions in the Netherlands: how many are there?

On 22nd November 2016, a book will be published in the Netherlands (sadly, in Dutch) which aims to answer the question: How many people in the Netherlands are wrongly convicted? (amazon page here). 51ygmyvj3vl

Some news coverage (in English) relating to the book release (Read here…   and here… ) have declared that one in nine convicted people in the Netherlands may be victims of miscarriages of justice. That figure, the author suggests, may be even higher in countries like Norway but he estimates that in most countries, the wrongful conviction rate will be between 4 and 11 percent.

The author, Ton Derksen, is emeritus professor of philosophy of science and has spent his career looking at questions of ‘truth’ and ‘evidence’ and how people inteton-derksenrpret evidence and statistics. He famously became involved in a notorious Dutch case of a nurse, Lucia de Berk, convicted of the multiple murders of patients, purely on statistical evidence. She was later released after his book was published concerning her case. He has subsequently written on lots of other cases where he examines the operation of the burden of proof.

His latest book is based upon new research among prisoners and forensic experts. He comes to some shocking conclusions. While Derksen’s work clearly focuses upon the Netherlands, it appears his research could have widespread application internationally, particularly his work on the nature of ‘truth’ and criminal investigations and trials. One has to hope that his work will be translated into English for the mono-linguists among us.

Wednesday’s Quick Clicks…

Monday’s Quick Clicks…

Wisconsin Innocence Project client Dan Scheidell’s 1995 conviction for sexual assault was vacated last week after DNA evidence implicated another individual…

Texas exoneree Anthony Graves who spent 12 years on death row before being exonerated in 2006, has been appointed to the board of directors for the Houston Forensic Science Center…

Former President of Ireland Mary McAleese and many others attended and spoke at the first International Innocence Conference held in Dublin, Ireland last weekend…

A Michigan man has been cleared of a 1992 rape after serving 17 years in prison for the crime…

According to LA District Attorney Jackie Lacey, Conviction Integrity Units are needed in order to preserve the integrity of prosecutor’s offices across the country…

Sharing Views on Prosecutorial Reform

If you’ve read much of my stuff on this blog, you must know that prosecutors, as a group, are not my favorite people. I am a person driven by logic, fairness, reason, and justice. Given their position, I would expect prosecutors to be the same. After all, they’re supposed to be “ministers of justice,” but my observation is that it’s so often not the case. I will grant that because of the work that I do, I routinely have exposure to prosecutorial behavior that is less than ethical, is not in the interest of true justice, and is sometimes just criminal. And because they’re “prosecutors,” they get away with it. I do not believe that prosecutors are inherently evil and unethical people; but they are human beings, subject to all the same human frailties that we all are. In fact, I believe their behavior is exactly what you would expect, given the incentives built into the system and the power with which they are endowed. What the actual extent of this problem is I’m sure we’ll never know, but I do know that I see it routinely, and I can only report what I observe.

As background, it would be helpful for you to see our earlier post regarding prosecutorial misconduct from two years ago: Prosecutorial Misconduct – What’s to be Done? A Call to Action. And as an update to this article, the National Registry of Exonerations now totals 1,618 wrongful convictions overturned as of this writing, and 46% of those had “official misconduct” as a contributing factor.

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Lawyers blame ‘groupthink’ for Sweden’s worst​​ miscarriage of justice

imagesA case that I have highlighted previously here… has been examined by some of the best legal minds in Sweden and they have concluded that there were no ‘systemic’ failures that led to a mental health patient being wrongly convicted of over 30 murders. Instead, they blame a culture of ‘trust’ which meant that critical questions were not asked of investigators and psychiatric personnel involved. There was insufficient scepticism of supposed confessions and no care was taken over the possibility of false memories. While the report seeks to ensure that mistakes are not repeated, ultimately the report leaves all involved individually blameless so no-one has been held to account. This may result in the case rumbling on for some time yet in the Swedish media. Read more here (including a link to the full report)…

Lawyers blame groupthink in Sweden’s worst​​ miscarriage of justice

Waiting is a Beast

Below is a link to a 17 minute video. This is Prof. Theresa Newman giving a recent TED Talk. She is co-director of the Duke Law Wrongful Convictions Clinic.

I have had the distinct honor and privilege of working with this lady on a number of wrongful conviction cases in North Carolina. She is one of those people who we should have many, many more of in this world.

Interestingly, I was deeply involved in both the cases she talks about. And I can say that, for all of us, the decision in Derrick’s case was truly a gut punch, as you will see. Unfortunately, this came at the same time that we lost “Al’s” case here in Ohio. Al had documentation and witnesses to prove he was in NY City at the time the murder was committed in Lorain, OH; but because of false eyewitness testimony, he was convicted – and the conviction was upheld.

We relish being able to talk about the successes, the exonerations, but they are truly rare compared to the number of wrongful convictions that exist. This is a heartwrenching business.

Prof. Newman talks about establishing a new paradigm for resolving wrongful conviction cases; but the wait will be long, and . . . . . . .

Waiting is a Beast

 

North Carolina Innocence Commission’s success has yet to inspire other states to follow suit

With eight exoncerations to its credit, the North Carolina Innocence Inquiry Commission is living up to its goals when it was established in 2006. With official powers that others who investigate possible wrongful conictions don’t have, The Atlantic reports here, the commission has been able to crack cases that others might not have been be able to. That should make it a national model for how states could correct wrongful convictions, but it hasn’t been so far. Money is one reason. A lack of commitment may be another.

Red Inocente Conference 2014

The Red Inocente conference in Bogota, Colombia this past weekend was an incredible success.  We had over 800 participants attend, including Angelino Garzon, the former ex-president of Colombia.  Staff attended from international innocence projects in Argentina, Chile, Costa Rica, Mexico, and Peru.  The conference was hosted by the Colombia Innocence Project at the Universidad Manuela Beltrán, which boasts 8 exonerations in the past 5 years.

EricOpening Table

Red Inocente is a legal education program that offers assistance to legal professionals in Latin America to create projects dedicated to the release of those wrongly convicted.  We also create and develop legislative reforms to reduce the number of wrongful convictions.  Red Inocente was based on more than a decade of success by the both the California Innocence Project and Proyecto ACCESO.

Martha ColombiaJustin from Above

Tuesday’s Quick Clicks…

A Push to Aid American Couple Held in Child’s Death in Qatar

http://mobile.nytimes.com/2014/05/12/world/middleeast/a-push-to-aid-couple-held-in-childs-death-in-qatar.html?referrer=

http://bit.ly/1mSlVTv

Follow me on Twitter:  @JustinoBrooks

Professor Justin Brooks
Director, California Innocence Project
California Western School of Law
225 Cedar Street
San Diego, CA 92101
jpb@cwsl.edu

www.redinocente.org
www.californiainnocenceproject.org

Breaking News: Court Decides to Reopen Hakamada Case

Previous posts on Hakamada case here and here.

This is a case from 1966. Iwao Hakamada has been held in confinement for 48 years. He is at Tokyo Detention Center, on death row.

Shizuoka District Court granted Hakamada’s petition for retrial today, saying that a new DNA testing result indicates that one crutial piece of evidence did not come from Hakamada.

It is the 6th time since 1945 that the courts grant a retrial in a death penalty case. However, the prosecutors still have a chance to appeal the decision.

PostScript:
Iwao Hakamada was released from the Tokyo Detention Center at around 17:20 JST on March 27th, 2014.

From Mainichi Shimbun News:
Court decides to reopen 1966 murder of 4

SHIZUOKA, Japan (Kyodo) — The Shizuoka District Court decided Thursday to reopen a high-profile 1966 murder case in which a former professional boxer has been on death row for more than 30 years for killing four people.

The court also decided to suspend the death penalty for Iwao Hakamada, 78, who was convicted of murdering Fujio Hashimoto, 41-year-old managing director of a soybean processing firm, his wife and their two children and setting fire to their home on June 30, 1966, in Shimizu city, Shizuoka Prefecture, which is now a part of Shizuoka city, as well as his detention.

During the petition for a retrial, his defense lawyers obtained DNA test results that indicated the DNA-type from blood stains detected on five pieces of clothing, which were said to have been worn by the culprit, is different from Hakamada’s.

Accepting the argument, Presiding Judge Hiroaki Murayama said, “The clothes were not those of the defendant,” indicating the possibility that investigators had fabricated the evidence.

Murayama also said, “It is unjust to detain the defendant further, as the possibility of his innocence has become clear to a respectable degree.”

It is the sixth time in postwar Japan that a court has approved a retrial for a defendant for whom capital punishment had been finalized. Of the other five, four were acquitted.

Hakamada, a live-in employee at the soybean processing firm, temporarily admitted to the charges after being arrested in August 1966, but changed his plea to one of innocence from the first court hearing.

Despite his plea, the Shizuoka District Court sentenced him to death in 1968, with the sentence finalized by the Supreme Court in 1980.

He filed his first appeal for a retrial in 1981, which was rejected by the top court in 2008, prompting his sister Hideko, 81, to file a second appeal immediately.

Despite the district court decision, it may still take time before a retrial can begin as prosecutors, who argued that the reliability of the DNA test is low, are expected to appeal the decision to the Tokyo High Court.

The defense team has urged prosecutors not to appeal, given that Hakamada’s mental state has deteriorated during almost 50 years in prison. Amnesty International Japan also issued a statement seeking the immediate start of a retrial, saying, “It is not too much to say that the unfair, long-time detention of a death row inmate is torture.”

After hearing the decision, Hideko said, “I am truly thankful,” while Katsuhiko Nishijima, who heads the defense team, said, “Mr. Hakamada’s strong desire has finally been attained.”

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Friday’s Quick Clicks…

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New Scholarship Spotlight: The Need for Defense Access to the Law Enforcement DNA Database

Jason Kreag has posted Letting Innocence Suffer:  The Need for Defense Access to the Law Enforcement DNA Database on SSRN.  Download here.   The abstract states:

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants’ innocence post-conviction. This Article fills that void by identifying a limited due process right to defense-initiated DNA database searches. The Article argues that the database is a powerful truth-promoting tool that should be available to law enforcement and defendants alike. Because legislators have failed to promote the search for actual offenders through statutory rights of access, this Article presents the constitutional authority for defense-initiated searches to vindicate the rights of innocent defendants.

Wednesday’s Quick Clicks…

  • Is forensic odontology too unreliable?
  • Exoneree Johnathan Montgomery takes it one day at a time
  • Missouri considers eyewitness identification reform and DNA preservation bill
  • Greg Wilhoit, a former Oklahoma death-row inmate from Tulsa and nationally-known anti-death penalty advocate whose story was included in author John Grisham’s “The Innocent Man,” died Feb. 14 in Sacramento, Calif., family members said. He was 59.  Full article here
  • Upcoming symposium at the Penn Quattrone Center:  A Systems Approach to Conviction Integrity

Insane DNA Testing Decision in Texas…

Decision here

How can you prove that biological material exists to text on the items in question unless you do the testing?  Boggles the mind…

From the Austin Chronicle, by Jordan Smith…

Death row inmate Larry Swearingen cannot prove that biological materials exist on evidence connected to the 1998 murder of Melissa Trotter – including on the alleged murder weapon – and therefore is not entitled to DNA testing of those items, the Court of Criminal Appeals ruled this morning.

Swearingen was convicted and sentenced to die for the 1998 murder of 19-year-old Trotter, a Montgomery County community college student who disappeared from her college campus on Dec. 8, 1998. Her body was found several weeks later, by a group of hunters, in the Sam Houston National Forest near Lake Conroe.

Swearingen was seen with Trotter on campus not long before she disappeared. He has maintained his innocence and has been seeking DNA testing for a decade. Among the never-before-tested items of evidence are two lengths of pantyhose – one used to strangle Trotter, found around her neck, the other later found by Swearingen’s former landlord inside a house Swearingen and his wife had previously rented from the man.

The state maintains that visual comparison proves the two pieces came from a single pair of hose. Neither piece has ever been subjected to DNA analysis.

In ruling against Swearingen on Wednesday, Judge Paul Womack wrote for the unanimous court that a district court ruling that last year approved the requested DNA testing would be overturned because Swearingen “cannot prove the existence of biological material” that could be tested. Although the defense presented to the district court expert testimony that biological evidence would “likely” be found on the pantyhose that is not enough to secure testing, the court ruled. “[W]e have explicitly held that appellee must prove biological material exists and not that it is merely probable.”

In other words, without testing, there can be no testing.

The court’s conclusion also precludes any testing of cigarette butts found near Trotter’s body or of Trotter’s clothes, absent a showing that biological material exists on each item.

Only finger nail scrapings taken from Trotter are considered “biological evidence per se” and thus not restricted by the need to prove DNA exists before testing can be done. Only some of the collected scrapings were tested, and material found from under one of Trotter’s fingernails produced DNA from an unknown male.

Still, that result is not enough to convince the court that if additional testing were to be performed it would do anything to convince a jury of Swearingen’s innocence. “In order to be entitled to DNA testing,” Womack wrote for the court, “[Swearingen] must show by a preponderance of the evidence (51%) that he would not have been convicted if the exculpatory results were available at trial.”

Indeed, the unidentified profile previously identified was presented to Swearingen’s jury, the court notes, apparently without effect. “Since the jury already was aware that an unidentified male’s DNA was found under the victim’s fingernails, we fail to see how other such results would have changed its verdict,” Womack wrote. “The jury chose to believe that the foreign DNA either was contamination or that it came rom outside the context of the crime.” In short, the court concluded, Swearingen “cannot show that new testing would lead to a different result.”

During a December hearing on the matter before the CCA, Montgomery County prosecutor Bill Delmore told the court that the mountain of circumstantial evidence against Swearingen is insurmountable and that even if further DNA testing revealed additional evidence from another male – even from a known “serial killer” – that he would conclude only that Swearingen had an accomplice. “Nothing will ever convince me of his innocence,” Delmore said.

 

 

Wednesday’s Quick Clicks…

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  • The unintended consequences of compensating the exonerated
  • Canada’s system for reviewing alleged wrongful convictions “failing miserably”
  • West Virginia University Law Innocence Project pushes interrogation recording bill
  •  What does a record number of U.S. exonerations in 2013 tell us?
  • ESPN video on the wrongful accusation against Richard Jewel for the 1996 Atlanta Olympics bombing
  • Ex-cop exonerated after 20 years in prison awarded $9 million
  • Mexican lawyers turned filmmakers win civil suit against them brought by family of victim in wrongful conviction case they exposed through the documentary Presumed Guilty
  • Planned changes in UK’s compensation laws for exonerees will make it nearly impossible to obtain compensation after wrongful conviction
  • New Zealand Innocence Project re-ignites debate about the need for a wrongful convictions commission
  • Idaho Innocence Project client Sarah Pearce may soon be released—settlement discussions ongoing

Violence In Brazilian Prisons Revealed in Decapatation Video

Man holding jail barsThe prison conditions in Latin America continue to be a crippling problem for the justice system, highlighted by the recent events in Brazil.  On January 7, 2014, the Brazilian daily newspaper Folha de São Paulo released a gruesome video showing the decapitation of three inmates. The video was taken, presumably, by inmates of Pedrinhas prison (São Luis, Brazil), on December 17, 2014.

This is just one example of the general violence in Brazilian prisons, especially in the state of Maranhão (north Brazil), where, from 2007 to now, approximately one hundred sixty nine inmates have been killed (sixty two in Predrinhas prison during 2013).

Amnesty International has denounced the situation and has described Brazilian prisons as overcrowded dungeons. They claim the government has done little to remedy these conditions.  The U.N. High Commissioner for Human Rights has also urged the Brazilian authorities to conduct an “immediate, impartial and effective” investigation.

The main causes of the problems are delays in the judicial system, lack of sufficient prison spots and the low ratio of police/inmate population. According to the International Prison Study Center, Brazil has the fourth largest inmate population in the world with 548,003 inmates housed in a penitentiary system with a capacity of 318,739.

The international pressure created due to the release of the prison decapitation video has resulted in the Minister of Justice, José Eduardo Cardozo, announcing a package of emergency measures aimed at trying to control chaos in prisons. These measures will be a positive first step in Brazilian prison reform, although without true long-term reform in the justice system prison overcrowding will continue to foster major problems.

Follow me on Twitter:  @JustinoBrooks

Professor Justin Brooks
Director, California Innocence Project
California Western School of Law
225 Cedar Street
San Diego, CA 92101
jpb@cwsl.edu

For more information, please see:  http://mexico.cnn.com/mundo/2014/01/10/brasil-despliega-un-plan-de-emergencia-contra-la-violencia-en-sus-carceles

Image courtesy of bejim / FreeDigitalPhotos.net

Wednesday’s Quick Clicks…

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  • Innocence Project of South Africa now officially a member of the Innocence Network
  • In the UK, new law could limit compensation to exonerees who can conclusively prove innocence
  • Nearly 350 years after his execution, a french jew is exonerated and declared a martyr
  • Almost 70 years after a 14-year-old African American was executed in South Carolina following the slaying of two young white girls, family members asked a local judge on Tuesday to order a retrial and correct what they called a long-ago miscarriage of justice.  Continue reading….

Monday’s Quick Clicks…

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Mexican Prison Overcrowding Reveals Underlying Issues

Mexican prisons are suffering from severe overcrowding due to preventative detentions and the lack of sentencing alternatives.  Mexico Evaluates, a Center of Analysis and Public Policy, has referred to the country’s prison system as a ticking time bomb.

The overcrowding in Mexico’s penitentiaries is obvious when you look at the capacities and current populations. There is at least one prison operating at 400% capacity and six are operating between 176-274% capacity. Currently, there are 242,000 inmates incarcerated in 420 prisons designed to house 195,000.  As in the United States, Felipe Calderon, President from 2006 to 2012, focused on building more cells.  This did not cure the problem, which lies in the overuse of preventative detention and the lack of alternative sentencing

Statistics from this past year reveal that 41.3% of prisoners had not yet been convicted.  There were three Mexican prisons where more than 60% of inmates had not been convicted, four where more than 76% of inmates had not been convicted, and in the prison in Tabasco, 94.5% of inmates had yet to be convicted.

The second major issue is that jail-time is viewed as the only logical solution to crimes.  In 2011, 96.4% of sentences called for incarcerations.  Only 3.6% of crimes were punished with other sanctions such as fines.  This is evidence that minor or common crimes are being treated the same as serious and violent crimes.  For example, the penal code establishes a similar sentence for a nonviolent robbery and a homicide without aggravating factors.  Approximately 72,000 inmates are currently incarcerated for theft.

The Mexican penal system must be altered and not simply used for preventative detention.  Alternative sanctions should also be explored so that the punishments better fit the crimes.  Overcrowded prisons become violent and ineffective at any form of rehabilitation. Former President Felipe Calderon admitted the country’s prisons only serve a retributive purpose.  The new president, Enrique Peña Nieto, has promised to envision new solutions.  Hopefully those will be coming soon.

Family members mourn the loss of inmates killed in prison riot where 44 were left dead.

Family members mourn the loss of inmates killed in prison riot where 44 were left dead.

Follow me on Twitter: @JustinoBrooks

Professor Justin Brooks
Director, California Innocence Project
California Western School of Law
225 Cedar Street
San Diego, CA 92101
jpb@cwsl.edu
www.californiainnocenceproject.com

For more information please see:  <http://www.proceso.com.mx/?p=355719&gt;

Photo Credit to:  <http://usatoday30.usatoday.com/news/world/story/2012-02-19/mexico-prison-riot/53152968/1&gt;