Category Archives: Inquisitional and adversarial systems of justice

Mexican Prison Overcrowding Reveals Underlying Issues

Posted on November 30, 2013 by justinobrooks | 1 comment

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.

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>

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

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Posted in Inquisitional and adversarial systems of justice, Latin America, Police conduct (good and bad), Reforming/Improving the system, Uncategorized

Immigration Policies Should Not be Driven By Prison Profiteering

Posted on November 26, 2013 by justinobrooks | 7 comments

On August 7, 2013, officials from the United States and Mexico met in Texas to discuss immigration reform. Roughly 400 thousand people, primarily from our bordering neighbor, are arrested for immigration violations each year. The creation and enforcement of immigration laws has created a massive industry with a vested interest in continuing the expansion and enforcement of immigration crimes.

Corrections Corporations America, the GEO Group, and Management and Training Corporation house 80% of those apprehended for immigration crimes. Between them, they make a profit of over $5 billion per year. CCA Founder is quoted as saying selling the concept of private prisons to the government is just “like you were selling cars, or real estate, or hamburgers.”

Prisons should not be run just like any other business. The social costs are too great to simply consider the supply and demand of inmates, and increasing supply by legislating new crimes or changing enforcement. Clearly, these companies rely and directly stand to benefit from anti-immigration laws. The Associated Press noted that they spent $45 million on lobbying over the last decade. Since 2005, the largest growth in prison populations came from federal immigration detentions. It has been the leading cause of incarceration for the last four years. It is the growth sector for these businesses.

Immigration reform is at the forefront of our national and foreign policy. Decisions need to be made that make sense domestically and for our relationships with our southern neighbors. Those decisions should also be driven by what is right, fair, and humane. They should not be driven by the profiteering of the corrections industry.

This image is from:
<http://www.detentionwatchnetwork.org/privateprisons>

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://ljazee.aljazeera.com/watch/shows/the-stream/the-latest/2013/10/9/privatizing-the-undocumented.html>

<http://ljazee.aljazeera.com/watch/shows/the-stream/the-stream-multimedia/2013/10/9/immigration-and-privateprisoncompaniesinfographic.html>

<http://hereandnow.wbur.org/2013/08/07/immigration-private-prisons>

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Posted in Inquisitional and adversarial systems of justice, Latin America, Reforming/Improving the system

Police Killings in Brazil: “Routine” and Uncontested

Posted on November 25, 2013 by justinobrooks | Leave a comment

According to government figures, Brazilian police kill more suspects than any other country in the world. In 2011, police in the city of Sao Paulo killed one suspect for every 229 they arrested, in comparison to the United States, where it is one per every 31,575.

A military officer takes pictures during the graduation ceremony of 920 new police officers in downtown Sao Paulo.
© 2012 Reuters

An incident last November illustrated this problem. A suspected car thief, Paulo Nascimento, was caught hiding in his home in a poor outskirt of Sao Paulo. He emerged pleading for his life: one officer slapped him, another kicked him in the rear, and a third shot him. The officers attempted to drive Nascimento to the hospital, but he died en route. Police have now been prohibited from transporting wounded suspects to hospitals, as this is often a cover-up for executions. In 2012, 360 of the 379 people transported to the hospital by police ultimately died.

What drew attention to the incident was that an anonymous neighbor got cell phone footage of the confrontation and Nascimento’s final moments. As a result of the video, the officers involved in the death of Nascimento are facing criminal charges; trial began in August of 2013.

Killings of suspects in custody or at the hands of police death squads have become the norm. However, the public is not demanding these officers be convicted. In a poll taken weeks after Nascimento was killed, 53% of Sao Paulo residents said an officer who kills criminals should not be imprisoned. The citizens are fed up with the high levels of robbery-homicides and largely unsympathetic to the fate of those who die in police custody.

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://online.wsj.com/news/articles/SB10001424127887323836504578553643435119434>

<http://www.hrw.org/news/2013/07/29/brazil-executions-cover-ups-police>

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Posted in Inquisitional and adversarial systems of justice, Latin America, Police conduct (good and bad)

Wrongfully Jailed Man Dies in an Argentinean Prison

Posted on November 18, 2013 by justinobrooks | Leave a comment

Luciano Peralta was the father of three children. He earned his living as a gardener. He had recently separated from his wife, Esther Cerrudo, but the two were on very amicable terms. On Sunday, October 27, 2013, Esther asked Luciano to watch the kids while she took care of some personal matters.

Argentinian police officers allege that a neighbor called to report a robbery at Esther’s residence. When they arrived, the officers arrested Luciano in front of his children. They proceeded to seize his motorcycle and the bicycle that belonged to Luciano’s young son.

Luciano was imprisoned in La Plata, a province in the capital city. When his ex-wife and mother arrived at the prison, Esther explained that she had asked him to be there and the children at the house were Luciano’s children. Nonetheless, they were told he would be spending the night in jail.

The following day, a public defender assured Luciano he would be free. She noted that he seemed lost and confused. Prior to his being released, Luciano began to suffer a panic attack. He started trembling and convulsing. His mother was at the prison, but she was not allowed to see him. The officers did not call a doctor nor did they call an ambulance. Luciano received no medical attention. Ultimately, he died in his cell.

Norma Silguero and Tatiana Peralta, mother and sister of the deceased. (Photo: @martinenlared)

We may never know the true motivations for the arrest or what really happened to Luciano at the jail. This case is another example of tragedies that can result from wrongful arrests and the need for reform within the Argentinian police.

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://diagonales.infonews.com/nota-204205-Estuvo-preso-sin-causa-y-murio-en-los-Tribunales-de-La-Plata.html>

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Posted in Defense lawyering (good and bad), Inquisitional and adversarial systems of justice, Latin America, Police conduct (good and bad)

New Evidence Found in 1966 Hakamada Case

Posted on November 17, 2013 by Kana Sasakura | 1 comment

My previous post on Hakamada Case here. This is a case from 1966. Hakamada claims his innocence from Tokyo Detention Center, where he is held on death row. He has been held in confinement for over 45 years.

From the Mainichi:

New evidence emerges in 1966 murder case: lawyers

SHIZUOKA, Japan (Kyodo) — New evidence has emerged in a 1966 murder case that suggests the man who has been convicted and is on death row for the crime may have been wrongfully accused, his defense lawyers said Sunday.

The new evidence in favor of Iwao Hakamada, 77, may provide stronger grounds in their appeal for a retrial, the result of which will be decided by the Shizuoka District Court next spring at the earliest.

The lawyers said the new evidence came to light in the witness statements of two colleagues of Hakamada who were staying at the same company dormitory at the time of the crime in June 1966. Continue reading →

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Posted in Asia, Capital punishment, Inquisitional and adversarial systems of justice, Junk science

Tagged Death Penalty, Hakamada Case, Japan

Brazil’s New “DNA” Technology

Posted on October 25, 2013 by justinobrooks | Leave a comment

DNA technology has become a key component in prosecuting the guilty and exonerating the innocent. DNA evidence increases certainty and enhances fairness.

In a new twist, Police Director Leandro Daiello of Brazil said the country has developed technology that works to detect the “DNA” of cocaine. The process involves analyzing trace alkaloids in the cocaine back to coca leaves grown in precise areas of the region.

In August of 2013, Brazil reported the DNA of the nation’s drugs: approximately 60% of the country’s cocaine came from Bolivia, 30% from Peru, and 10% from Columbia. The process has enabled police to determine the origins of the drug, what other chemicals are being used in the drug’s production, and where the drugs are being transported.

A federal forensic expert for Brazil’s Criminalist Institute, Adriano Maldaner, noted that the drug problem is international, “which makes the exchange of information and training critical.” To date, the technology is being used in a project that has partnered with Bolivia, Paraguay, the United Nations Office on Drugs and Crime, and the United States Drug Enforcement Administration. Laboratories throughout the world are receiving the same samples and comparing their work.

On August 23, 2013, Paraguayan officials seized two tons of cocaine near the country’s border with Brazil. The aforementioned technology and regional cooperation will assist in the investigation.

In nations where access to technology remains limited, adequate policing and access to justice is also inhibited. This scientific advance is another tool in the tool box which may prove to be useful.

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 visit:

<https://reportingproject.net/occrp/index.php/en/ccwatch/cc-watch-briefs/1829-brazil-drug-dna-and-drones-to-fight-trafficking>

<http://www.insightcrime.org/news-briefs/brazil-developing-technology-to-trace-cocaine-dna>

<http://infosurhoy.com/en_GB/articles/saii/features/main/2013/08/19/feature-01>

<http://globalnews.ca/news/799330/paraguay-seizes-nearly-2-tons-of-cocaine-along-brazil-border/>

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Posted in Inquisitional and adversarial systems of justice, Latin America

Children Living in Jails in Bolivia

Posted on October 23, 2013 by justinobrooks | Leave a comment

The San Pedro Prison located in La Paz, Bolivia, was built 140 years ago for 250 inmates. Today it houses around 2,000 inmates and is home to 200 children. The number rises to almost 400 at Christmas time.

The mural reads: Welcome to the football pitch… Freedom and justice for everyone.

Denis Racicot, a representative of the United Nations High Commission on Human Rights, reported that Bolivia is the only country where children live in jails with their parents. Ramiro Llanos, the current Director of the Prison system, insisted this is not uncommon practice in other parts of South America.

During the day, the children living in San Pedro either go to nurseries located inside or attend schools outside. There is an elementary school 50 yards away. The kids are ashamed of their residence, often making up false addresses. Furthermore, their perception of reality is significantly disparate from those of their classmates.

Children living in the Bolivian jails.

Life inside the San Pedro Prison is extremely unique. First and foremost, inmates must pay for their rooms. The jail is divided into eight sectors based on their relative value, ranging from the most luxurious La Posta sector to the most miserable. Inmates can rent their rooms if they are unable to afford them. There are also inmates who are homeless, forced to live in the hallways, because they cannot afford rent. This is comparable to drug warlords in Mexico, who are afforded better cell accommodations, food, and liquor catering services thanks to their political power, social position, and monetary advantages.

In order to pay for their rooms, inmates must work to earn a living. Within the jail they might work as carpenters, laundry staff, shoe-shiners, or sell food and groceries. Police do not intervene with the jail’s internal affairs. Prisoners are denied sufficient basics like soap, shampoo, and clothing. Thus, the majority of their resources are brought to them from outside family members, including their children.

Life inside a Bolivian prison.

The fact that children are living with their incarcerated fathers is evidence of the lack of positive alternatives for them. Some say that it has a humanizing effect on inmates, encouraging their rehabilitation and desire to reenter society successfully. However, the potential for disastrous psychological and physical effects is there. For example, in June, a 12 year-old girl was raped and impregnated. In the nearby city of Santa Cruz, a prison fire on August 23, 2013, killed 29 inmates and one 18-month old child.

Due to the outrage that these two recent events sparked, the government of Bolivia stressed it plans to shut down the prison in San Pedro. This is not the first time the government has threatened to take action. Furthermore, it is an action directed at the symptom, not the source of the problem. First, quite astoundingly, only 25% of inmates have actually been convicted. The rest are awaiting trial. This reflects the entire country’s incarceration rate: as of 2011, 80% of the 10,496 prisoners were on preventative detention. Additionally, every four of five prisoners is in for drug-related offenses.

In 2011, President Evo Morales attempted to address the issue of the stagnant and corrupt judicial system by holding a nation-wide election. Judges were chosen for the Supreme Court and three lower courts. There were 125 candidates, 52 positions, and 5.2 eligible voters. Unfortunately, a congressional assembly committee made up of the President’s supporters selected the 125 candidates. The opposition was merely able to view candidates and voice appeals.

The San Pedro Prison is essentially a “jail town.” Inmates must work to earn a living, pay for their accommodations, and are permitted to live with their sons and daughters. This poses a huge risk to the children. Nevertheless, due to the lack of institutional development in the judicial area, insufficient public resources, and extreme poverty of most prisoners, the situation looks bleak. It seems access to justice is severely limited by one’s economic power.

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 sources and information please see:

<http://www.nu.org.bo/noticias/noticias-nacionales/onu-rechaza-presencia-de-ninos-ninas-en-las-carceles/> <http://news.bbc.co.uk/2/shared/spl/hi/picture_gallery/06/americas_inside_a_bolivian_jail/html/1.stm>

<http://www.aljazeera.com/indepth/opinion/2011/10/201110169924243497.html>

<http://danmoriarty.blogspot.com/2013/06/closing-san-pedro-prison.html>

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Posted in Inquisitional and adversarial systems of justice, Latin America, Reforming/Improving the system, Uncategorized

Chile Closes Luxury Prison

Posted on October 21, 2013 by justinobrooks | Leave a comment

CHILEAN JAIL FOR DICTATORSHIP SUPPORTERS WILL BE CLOSED AFTER MOVING INMATES

One house in the Cordillera jail in Santiago, now to be closed.

General Augusto Pinochet ruled over Chile as a dictator from 1973 to 1990. When he died in 2006, he was facing over 300 potential criminal charges for human rights violations, tax evasion, and embezzlement. The 40^th anniversary of the coup d’état that brought him to power was passed on September 11. For many, it was a day to remember Pinochet intolerance for political opposition and the tens of thousands of people who were killed, tortured, or interned during his reign. To date, Chile has officially recognized 40,018 victims of the dictatorship; 75% were killed.

Penal Cordillera is a luxury prison that was built in the capital city of Santiago in 2004. It currently houses only 10 inmates: eight generals and two colonels from Pinochet’s military. The inmates have “an assistant, three paramedics, two cuisine teachers, and a nutritionist to supervise their meals.” The convicts live in small cabins with hot showers, share a pool, tennis court, and barbecue, and are allowed to visit home. It is known as a “golden prison.” It is very different from the Chilean prisons I recently posted about where substandard sustenance, sanitary conditions, and overcrowding has incited various long-lasting hunger strikes.

On September 26, President Sebastián Piñera announced his decision to close Cordillera. He pointed to the importance of “equality before the law” as his reasoning. Piñera announced the inmates would be moved to Punta Peuco, a less luxurious jail also intended for human rights offenders. Two days after his statement, the head of Pinochet’s feared intelligence agency, General Odladier Mena, left the prison for the weekend and killed himself outside his home.

The director of Chile’s official Human Rights Institute called the closure of Cordillera a milestone. Michelle Bachelet, former president and front-runner for the upcoming November election, was detained and tortured during Pinochet’s dictatorship. She praised the decision.

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.theguardian.com/world/2013/sep/27/chile-closes-luxury-prison-pinochet-cordillera>

<http://latino.foxnews.com/latino/news/2013/09/29/chile-pinochet-era-general-commits-suicide-before-jail-transfer/>

<http://www.voxxi.com/chile-closes-golden-prison/>

Photograph: Mario Ruiz/EPA

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Posted in Inquisitional and adversarial systems of justice, Latin America, Reforming/Improving the system

Lawyers Gather in Buenos Aires for Second Annual Latin America Innocence Conference

Posted on October 16, 2013 by justinobrooks | Leave a comment

Attorneys gathered from all over Latin America for the Red Inocente! Second Annual Latin American Innocence Conference last week in Buenos Aires, Argentina. Over a span of three days, Enrique Piñeyro, the Director of the newly established Innocence Project Argentina, graciously welcomed participants from Argentina, Brazil, Chile, Colombia, México, Nicaragua, Paraguay, and Puerto Rico. The group included attorneys, law students, judges, academics, politicians, scientists, and members of the media.

Director of the Innocence Project Argentina, Enrique Piñeyro

Piñeyro, also an accomplished Argentine film director, hosted the conference and organized speakers on an array of topics. Attorneys spoke about evidentiary issues. Experts spoke about the criminalization of the poverty in the Latin American jails and corruption in the judiciary. California Innocence Project exoneree, Rafael Madrigal, spoke about the seven years he spent in prison after he was wrongly convicted for an attempted murder in Orange County, California. Exoneree, Eric Volz from Nicaragua, also spoke on his international experience resulting from his wrongful murder conviction. Both of these talks allowed people to hear about the real-life experiences of those unjustly sent to prison and illustrated why innocence work is so important throughout the world.

Director of the California Innocence Project, Justin Brooks

This conference was the second conference of its kind. The first conference was held in 2012 in Santiago de Chile. Since the conference in Chile, innocence projects have taken root in Mexico, Argentina, Chile, and Peru. The directors of these projects, as well as the director of the already long-established project in Colombia, were able to speak to the group and relay the problems, challenges, and successes of their work in their respective countries.

Participants and speakers from Brazil, Unites States, Nicaragua, Mexico, and Argentina.

Piñeyro also showcased his documentary, The Rati Horror Show, to demonstrate the corruption and serious problems of the Argentine judicial system. The documentary was pivotal in the release of Fernando Carrera, who was convicted of murder because the police altered evidence at the scene of the crime and manipulated witness testimony. Carrera, in an unexpected Argentina Supreme Court decision, was ordered back to prison when the Court denied the decision by the lower court to reverse his conviction. Carrera’s attorneys also participated in a forum where participants were allowed to ask them questions about the judicial decisions and the facts surrounding the underlying conviction.

The Mexican documentary, Presunto Culpable, was also shown at the conference. The film vividly illustrates the struggle to exonerate an innocent man in the deeply flawed Mexican justice system.

Directors of the established projects from Colombia, Brazil, Peru, Mexico, Nicaragua, Colombia, and the United States.

Directors of the established projects from Colombia, Brazil, Peru, Mexico, Chile, Nicaragua, Colombia, and the United States.

Red Inocente! hopes to organize a conference for Latin American innocence projects every year to continue to share information, experiences, and knowledge. The conference will be held in Bogotá, Colombia in October of 2014. Red Inocente! is a non-profit legal and education program designed to offer assistance to those who are trying to help secure the release of innocent prisoners in Latin America, promote legislative reforms to reduce the number of wrongful convictions, and offer information on latest developments in forensic science and law to the lawyers who litigate these cases.

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 visit the following websites: www.redinocente.org, www.ipargentina.org.

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Posted in Editorials/Opinion, Film/Cinema, Inquisitional and adversarial systems of justice, Latin America, Reforming/Improving the system, Uncategorized

Law Review Issue on Wrongful Convictions Around the Globe Now in Print…

Posted on September 25, 2013 by Mark Godsey | 2 comments

At long last, the University of Cincinnati Law Review symposium issue stemming from the 2011 International Innocence Conference in Cincinnati is finally in print. The edition contains articles discussing and summarizing the causes and extent of wrongful conviction in countries across the globe. You can find the entire volume here. Congrats to all involved on completing this important work.

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Posted in Asia, Australia/New Zealand, Inquisitional and adversarial systems of justice, Latin America, Scholarship, United Kingdom

Chilean Prisoners: Denied Human Rights and a Voice

Posted on September 20, 2013 by justinobrooks | Leave a comment

Chile has one of the highest incarceration rates of Latin America. However, according to the 2012 Human Rights Report from the University of Diego Portales, the country has the lowest number of violent crimes in the region.

This problem manifests in two ways: many basic needs of prisoners are ignored; meanwhile, they are unable to voice their concerns. It has become a public interest concern. For instance, on August 14 twenty-four prisoners were injured in a fire at the Penitentiary in Quillota. Three years earlier, a fire in San Miguel killed eighty-one.

The problem persists because the government does not recognize its fundamental role to protect all citizens, including incarcerated ones. In 2012, President Sebastián Piñera promised to build more jails in order to circumvent the evident prison overcrowding. Nevertheless, the treatment of the convicts themselves has improved little.

Prisoners are subject to torture, cruel and inhumane treatment. Any sense of rehabilitation is far from reality for Chilean inmates.

On the other hand, the 16th and 17th amendments of the Chilean constitution prohibit detainees from participating in the voting process. Thus, they lack a vehicle to improve their conditions—53,410 citizens are being disregarded. This is not the case in countries such as Canada, Iran, South Africa, and Ukraine.

It is evident Chile is not facilitating the successful reentry of its inmates into society. Not only are they being discriminated against, but they are often from the most marginalized areas of the country to begin with. Though these individuals may deserve to have their liberty restricted, it is indefensible to strip them of their dignity.

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 from the original article: http://www.elquintopoder.cl/justicia/la-indolencia-con-los-privados-de-libertad/

This photo is taken from: http://www.pulsamerica.co.uk/2010/12/12/chile-this-week-4/

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Posted in Inquisitional and adversarial systems of justice, Latin America, Reforming/Improving the system, Uncategorized

New Scholarship Spotlight: Lessons from Inquisitorialism

Posted on September 13, 2013 by Mark Godsey | Leave a comment

Vanderbilt Law Professor Christopher Slobogin has posted the above-titled article on SSRN. Download here. The abstract states:

The adversarial system as it is implemented in the United States is a significant cause of wrongful convictions, wrongful acquittals and “wrongful” sentences. Empirical evidence suggests that a hybrid inquisitorial regime would be better than the American-style adversarial system at reducing these erroneous results. This paper proposes the integration of three inquisitorial mechanisms into the American trial process — judicial control over the adjudication process, non-adversarial treatment of experts, and required unsworn testimony by the defendant — and defends the proposals against constitutional and practical challenges. While other scholars have suggested borrowing from overseas, these three proposals have yet to be presented as a package. Together they could measurably enhance the accuracy of the American criminal justice system.

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Posted in Inquisitional and adversarial systems of justice, Scholarship

A Victory for the “Flat Earth Society”

Posted on September 6, 2013 by Mark Godsey | Leave a comment

From chron.com:

NEW YORK (AP) — Bite mark evidence that may connect a murder suspect to the victim will be allowed at his trial, a judge decided Thursday, disappointing those who hoped the case would help get the forensic technique banished from the nation’s courtrooms.

Manhattan state Supreme Court Justice Maxwell Wiley’s decision follows lengthy testimony last year that went to the heart of the reliability of bite mark analysis, which involves comparing bite marks left on the flesh of victims with the teeth of suspects.

At least 24 men convicted or charged with murder or rape based on bite marks found on victims have been exonerated in the U.S. since 2000, according to a June report by The Associated Press based on decades of court records, archives, news reports and filings by the Innocence Project, which helps wrongfully convicted inmates win freedom through DNA testing.

Many of those who were exonerated spent more than a decade in prison, including time on death row.

The AP analysis is the most comprehensive count to date of those exonerated after being convicted or charged based partially or entirely on bite mark evidence.

In Thursday’s case, Wiley said he would explain the reasoning behind his ruling in a written decision, but he did not say when that would be.

He did say that his basic finding was that “the field of bite mark analysis comports with the standards of evidence under New York law.” He added: “It’s obviously a field that has not been looked at closely by the courts in a long time.”

Chris Fabricant, director of strategic litigation at the Innocence Project, was at Thursday’s hearing and said Wiley’s decision was “contrary to the overwhelming consensus of the scientific community.”

“It’s a victory for the Flat Earth Society,” he said.

The Innocence Project and other defense attorneys slam bite mark analysis as sham science and argue that it should no longer be allowed in courtrooms.

Many forensic dentists defend the practice as useful, especially when trying to eliminate suspects, and say it has helped convict murderers and rapists, most famously serial killer Ted Bundy.

The New York case involves the murder of 33-year-old Kristine Yitref, whose beaten and strangled body was found wrapped in garbage bags under a bed in a hotel near Times Square in 2007.

A forensic dentist concluded that a mark on her body matched the teeth of Clarence Brian Dean, a 41-year-old fugitive sex offender from Alabama.

Dean told police he killed Yitref in self-defense, saying she and another man attacked him in a robbery attempt after he agreed to pay her for sex; no other man was found.

Dean is awaiting trial on a murder charge. His attorney declined to comment after Thursday’s hearing.

Prosecutors wanted the bite mark evidence allowed at his trial to help convince jurors of Dean’s guilt. His defense attorneys wanted it barred because of past mistakes involving the practice and how powerful bite mark evidence can be to jurors, even with opposing testimony.

Dr. David Senn, a San Antonio forensic dentist, testified in last year’s hearings that bite mark analysis is valid when used in a closed population of suspects and that problems of the past can be blamed on individual dentists, not the science itself.

“The issue is not that bite mark analysis is invalid, but that bite mark examiners are not properly vetted,” he said.

He added that he couldn’t imagine a case today in which he would identify a biter unless “there was other very strong corroborating evidence.”

Testifying for defense attorneys at the hearings was Dr. Mary Bush, a researcher at the University of Buffalowho has used computer models to study bite marks made on dead bodies using pliers and dental models. Her research, which has been published in the Journal of Forensic Sciences, found that human dentition is not unique and cannot be accurately transferred to skin.

Bush acknowledges that a significant limitation of her research includes the fact that she’s using dead bodies that have been frozen and thawed and using machinery to create bite marks, a method that is far from re-creating a real-life bite made on a live person during an act of violence.

Bush testified that she did not feel that bite marks should be admissible in courtrooms but that more research in the field is needed.

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Posted in Forensic controls, Inquisitional and adversarial systems of justice, Junk science

Losing sight of justice…

Posted on August 9, 2013 by Mark Godsey | 3 comments

There have been a couple recent examples in the news of the kind of unfortunate attitude those in the Innocence Movement see all to frequently from judges and prosecutors who have lost touch with the notion of putting justice over winning. In Ohio, a judge berated a jury after they acquitted a man. You can imagine what kind of message that sends to jurors in that county who are called for jury duty next month or next year. Unbelievably unprofessional conduct by a judge. And in Chicago, a former prosecutor talks about how she quit after being demoted because she did not want to press forward with what she believed was an untenable prosecution. Kudos to her for having the courage to speak publicly.

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Posted in Inquisitional and adversarial systems of justice, Prosecutorial conduct (good and bad)

New Scholarship Spotlight: The Daubert Counterrevolution

Posted on July 31, 2013 by Mark Godsey | Leave a comment

Professor David Bernstein has posted the above-titled article on SSRN. Download here. The Abstract states:

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by counter-revolutionary judges to stop or roll back the changes, even when the changes were codified into Federal Rule of Evidence 702.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony.

Parties to litigation, they argued, often presented expert testimony of dubious validity because it supported their positions, while lay juries were incapable of discerning which side had the better case. However, it took the rise of toxic tort litigation based on questionable causation theories and the attendant threat to multi-billion dollar industries to provoke a meaningful response from the courts, a sudden and dramatic shift toward stricter admissibility standards.

Part II describes the Daubert trilogy and the emergence of amended Rule 702. A pattern emerged of the Supreme Court attempting to strengthen the rules governing expert testimony, some lower courts resisting, and the Court responding by issuing a new opinion clarifying the courts’ new “gatekeeping” responsibilities. Eventually, an amendment to Federal Rule of Evidence 702 codified the Daubert trilogy, and did so with language that removed ambiguities and loopholes exploited by judges who had been inclined to try to evade the Court’s rulings.

Nevertheless, as Part III describes, some federal judges have continued to apply significantly more lenient standards for expert testimony than Rule 702 allows. They do so by ignoring the language of Rule 702, and instead relying on precedents from a bygone era. The First Circuit’s Milward opinion, described in detail in Part III, demonstrates many errors and fallacies common to judges who have chosen to resist the Daubert revolution.

The underlying issue theme tying the history of, and present controversy over, the admissibility of evidence in toxic tort litigation is a dispute over the underlying rationale for having special rules for the admissibility of expert testimony. Judges that favor more liberal rules for admissibility believe that the rules are meant to address only the problem “junk science” – scientific testimony that not only falls outside the scientific mainstream, but does so in the face of well-accepted contrary evidence.

More restrictive judges, by contrast, are addressing the broader problem of “adversarial bias” that results from our legal system allowing the parties to choose their own experts. In short, parties to litigation have a natural inclination to choose experts whose views match their theory of the case, even if those experts are outliers or hired guns. Rule 702 tries to limit this problem by insisting that experts show an objectively verifiable basis for their testimony, so that the trier of fact is not in the position of relying on the mere ipse dixit of an expert chosen solely because his views are consistent with the partisan position of a party to litigation.

This Article concludes by discussing some of the factors that have led some federal judges to defy Rule 702. The author contends that the Supreme Court should take an appropriate opportunity to crack down on such judicial rebellion, for two reasons. First, Rule 702 is the law of the land, and federal judges are obligated to enforce it regardless of their personal views on what expert testimony should be admissible. Second, Rule 702 represents a constructive effort to confront the problem of adversarial bias while retaining the basic contours of broader adversarial process.

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Posted in Inquisitional and adversarial systems of justice, Junk science, Scholarship

Judge fires 34-year court veteran for helping man wrongfully convicted of rape

Posted on July 29, 2013 by Mark Godsey | 4 comments

From deseretnews.com:

KANSAS CITY, Mo. — A Kansas City man freed from prison three decades after being wrongfully convicted of rape considers Sharon Snyder his “angel” for giving him a public document that showed him how to properly seek DNA tests. A Jackson County Circuit judge considers the 34-year court employee an insubordinate for offering legal advice and being too chatty about courthouse matters.

Sharon Snyder, a 70-year-old great-grandmother who was fired nine months before she was scheduled to retire, sees herself somewhere in the middle and insists she would provide the same help if she had a chance to do it again.

Robert Nelson, 49, was convicted in 1984 of a Kansas City rape that he insisted he didn’t commit and sentenced to 50 years for forcible rape, five years for forcible sodomy and 15 years for first-degree robbery. The judge ordered the sentence to start after he finished serving time for robbery convictions in two unrelated cases prior to the rape conviction.

Those sentences ended in 2006.

In August 2009, Nelson filed a motion seeking DNA testing that had not been available at his trial 25 years earlier, but Jackson County Circuit Judge David Byrn denied the request. Two years later Nelson asked the judge to reconsider, but again Byrn rejected the motion because it fell short of what was required under the statute Nelson had cited.

After the second motion failed in late October 2011, Snyder gave Nelson’s sister, Sea Dunnell, a copy of a motion filed in a different case in which the judge sustained a DNA request.

Nelson used that motion — a public document Dunnell could have gotten if she had known its significance and where to find it — as a guide for a motion he filed Feb. 22, 2012, again seeking DNA testing. That August, Byrn sustained the motion, found Nelson to be indigent and appointed Laura O’Sullivan, legal director of the Midwest Innocence Project, to represent him.

The Kansas City Police Department’s crime lab concluded last month that DNA tests excluded Nelson as the source of evidence recovered from the 1983 rape scene and he was freed June 12.

“She gave me a lot of hope,” Nelson said of Snyder. “She and my sister gave me strength to go on and keep trying. I call her my angel. She says she’s not, but she truly is.”

Five days after Nelson was released, Court Administrator Jeffrey Eisenbeis took Snyder into Byrn’s office near closing time and told her the prosecutor and defense attorney “had a problem” with her involvement in the case. She was suspended without pay, ordered to stay out of the courthouse unless she had permission to be there and scheduled to meet with a human resources investigator June 20.

“At first I didn’t know if my pension was going to be intact, and all I could do was curl up in a fetal position and cry,” said Snyder, who had been planning to retire in March. She later found out her pension would be just fine.

Byrn fired her June 27, telling her she had violated several court rules by providing assistance to Nelson and talking about aspects of the case, even while under seal, to attorneys not involved in the matter.

The judge’s dismissal letter cites numerous recorded phone conversations between Dunnell and Nelson in which they discussed Snyder’s efforts, including the document she provided that Nelson used in his successful DNA motion.

“The document you chose was, in effect, your recommendation for a Motion for DNA testing that would likely be successful in this Division,” Byrn wrote. “But it was clearly improper and a violation of Canon Seven … which warns against the risk of offering an opinion or suggested course of action.”

Court spokeswoman Valerie Hartman said Byrn and other court officials wouldn’t comment on the story for a number of legal and ethical reasons, in addition to it being a personnel matter. Nelson’s attorney, O’Sullivan, also declined to comment.

“I lent an ear to his sister, and maybe I did wrong,” Snyder said. “But if it was my brother, I would go to every resource I could possibly find.

“I think I might have been the answer to his prayers.”

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Posted in Inquisitional and adversarial systems of justice, Prosecutorial conduct (good and bad)

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

Posted on July 9, 2013 by Mark Godsey | 5 comments

From 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.

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Posted in Inquisitional and adversarial systems of justice

Tuesday’s Quick Clicks…

Posted on May 28, 2013 by Mark Godsey | 2 comments

In China, making judiciary more independent would reduce wrongful convictions
Texas Forensic Science Commission to be given more authority
New training could be mandated for Texas prosecutors
How DNA testing has changed the criminal justice system in America
Exonerated Florida men protest law that would be speed up death penalty in that state; ask Governor for meeting to discuss proposed law
Photos from the Innocence Project New Orleans annual gala

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Posted in Asia, Capital punishment, Commissions/Innocence Commissions/Governmental Case Review Agencies, Forensic controls, Inquisitional and adversarial systems of justice, Latin America, Reforming/Improving the system

Grotesque Speed for Florida Capital Cases

Posted on May 16, 2013 by Mark Godsey | Leave a comment

From the NYTimes:

The Timely Justice Act, a grotesquely named bill passed by the Florida Legislature, could get to Gov. Rick Scott as soon as this week for him to sign into law. The measure would require a governor to sign a death warrant within 30 days of a review of a capital conviction by the State Supreme Court, and the state would be required to execute the defendant within 180 days of the warrant.

Also this week, an inmate on Florida’s death row, Clemente Javier Aguirre-Jarquin, presented DNA evidence that could exonerate him. He was convicted in 2006 of murdering two women, based largely on circumstantial evidence. On Monday, he was in court seeking a new trial because the DNA evidence showed that blood at the crime scene — none of it his — was that of a victim’s daughter, who, his lawyers argue, likely committed the murders.

Mr. Aguirre-Jarquin’s case offers good reason for Governor Scott to veto the bill. The state’s indisputably defective death penalty system is made more horrifying by attempts to rush inmates to execution. There is a strong chance that Mr. Aguirre-Jarquin will become the 25th death-row inmate exonerated in Florida since it reinstated capital punishment in 1973. More death-row inmates have been exonerated in Florida than in any state.

As the American Bar Association explained in a scathing 2006 report on the state’s death penalty system, Florida is one of the few states that allows a jury to recommend a sentence of death based on a majority vote rather than a unanimous one. Defendants charged with capital crimes often have woefully unqualified counsel, and are much more likely to be convicted and sentenced to death if the victim is white — a sign of racial disparity that is clearly unconstitutional. The flaws in Florida’s system, which soaks up huge amounts of resources, cannot be fixed. It is long past time to abolish capital punishment.

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Posted in Capital punishment, Editorials/Opinion, Inquisitional and adversarial systems of justice, Legislation

Early reviews of Amanda Knox book starting to appear

Posted on April 22, 2013 by Martin Yant | 4 comments

Waiting to be Heard, Amanda Knox’s book about her wrongful murder conviction in Italy, subsequent acquittal and current legal limbo. isn’t due for release until April 30, but advance reviews are already starting to appear. According to this review in The New York Times, Knox does more than argue her innocence. She also shares how she survived being snared in the web of a Kafkaesqe high-profile case. ”I pulled myself out of the dark place into which I’d tumbled,” she writes. I promised myself I’d live in a way that I could respect. I would love myself. And I would live as fully as I could in confinement.”