Category Archives: Legislation

Justice System Out of Control —- If You Change a Baby’s Diaper in Arizona, You Can Now be Convicted of Child Molestation.

This from a recent story on Slate by Mark Joseph Stern: “The Arizona Supreme Court issued a stunning and horrifying decision on Tuesday, interpreting a state law to criminalize any contact between an adult and a child’s genitals. According to the court, the law’s sweep encompasses wholly innocent conduct, such as changing a diaper or bathing a baby.”

Not only that, but this law places the burden upon the accused to prove that there was no sexual intent. This throws presumption of innocence (innocent until proven guilty) out the window!

“Arizona prosecutors can now dangle the threat of a probable child molestation conviction to coerce any parent of a young child into taking a plea deal on unrelated charges. With the state Supreme Court’s help, Arizona’s child molestation laws have been weaponized into a tool for prosecutorial harassment, allowing the state to target any parent or caregiver—out of spite or malice, or simply to boost their conviction rates.”

Arizona has, once again, proven that the inmates are truly running the asylum. This is so absurd, it would be laughable – if it weren’t so tragic.

Please see the full story on Slate by Mark Joseph Stern here.

Tuesday’s Quick Clicks…

We Are All Sex Offenders

This is incredibly powerful. A TEDx talk by Galen Baughman, who was released, by jury trial, from indefinite civil commitment for being a sex offender.

It’s 17 minutes. You have to watch this.

One quote from the talk that really struck me: [in today’s environment of sex offender laws, enforcement, and prosecution] “Your child has a higher probability of being put on the sex offender registry than ever being touched by a stranger.”

At Last. The Exonerated Get a Tax Break.

If you’ve been wrongfully convicted, and wrongfully spent years, if not decades, of your life in prison, you may or may not be entitled to compensation after exoneration. Thirty states, the District of Columbia, and the federal government provide some form of compensation to the wrongfully convicted. The conditions under which compensation is paid, and how much is paid, vary widely from state to state. And there are twenty states that provide nothing.

Now imagine this. You’ve been exonerated of a crime you never committed after spending many years in prison. You successfully sue the state for compensation, and then find out the federal government is going to levy income tax on your award. Does that sound right? Of course not, but that’s the way it’s been.

Thankfully, Congress has just passed The Wrongful Convictions Tax Relief Act of 2015, which will eliminate federal income tax on wrongful conviction compensation.

See the story from The Innocence Project here.

Thursday’s Quick Clicks…

Monday’s Quick Clicks…

Ohio Moving to Curtail Civil Asset Forfeiture

In many states, including Ohio, the police may seize and keep a person’s assets merely with evidence that “wrongdoing” has occurred. This includes cars, houses, boats, and cash. A person does not have to be convicted of a crime to suffer civil asset forfeiture, and in many instances “evidence of wrongdoing” is very subjectively interpreted by the police.

There is currently a bill moving through the Ohio legislature that would curtail this practice, and if passed, would require a conviction before the police could keep seized assets.

See the WCPO Cincinnati story here.

Criminal Law 2.0, by The Hon. Alex Kozinski (Why the US Justice System Really Isn’t Just)

Alex Kozinski is a judge on the U.S. Ninth Circuit. He has recently authored an article for the Georgetown Law Journal, which he simply titles “Criminal Law 2.0.” It is a comprehensive review and critique of the flaws and shortcomings of the current US justice system. My opinion is that this article is a masterpiece, a classic. Here is an experienced, seasoned, knowledgable justice system “insider” who has “figured it out.” And not only has he figured it out, but he also has some very good ideas about fixing the problems, or at least some of them. You can see the full text here: Kozinski, Criminal Law 2. I strongly encourage reading the full article.

Here is a topical summary: (Please see the full article for Judge Kozinski’s discussion of each point.)

A. The myths that cause us to think that the justice system is fair and just, when it’s really not.

  1. Eyewitnesses are highly reliable.
  2. Fingerprint evidence is foolproof.
  3. Other types of forensic evidence are scientifically proven and therefore infallible.
  4. DNA evidence is infallible.
  5. Human memories are reliable.
  6. Confessions are infallible because innocent people never confess.
  7. Juries follow instructions.
  8. Prosecutors play fair.
  9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
  10. Police are objective in their investigations.
  11. Guilty pleas are conclusive proof of guilt.
  12. Long sentences deter crime.

B. Recommendations for reform – Juries

  1. Give jurors a written copy of the jury instructions.
  2. Allow jurors to take notes during trial and provide them with a full trial transcript.
  3. Allow jurors to discuss the case while the trial is ongoing.
  4. Allow jurors to ask questions during the trial.
  5. Tell jurors up-front what’s at stake in the case.
  6. Give jurors a say in sentencing.

C. Recommendations for reform – Prosecutors

  1. Require open file discovery.
  2. Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations.
  3. Adopt standardized, rigorous procedures for eyewitness identification.
  4. Video record all suspect interrogations.
  5. Impose strict limits on the use of jailhouse informants.
  6. Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process.
  7. Keep adding conviction integrity units.
  8. Establish independent Prosecutorial Integrity Units.

D. Recommendations for reform – Judges

  1. Enter Brady compliance orders in every criminal case.
  2. Engage in a Brady colloquy.
  3. Adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense.
  4. Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.
  5. When prosecutors misbehave, don’t keep it a secret.

E. Recommendations for reform – General

  1. Abandon judicial elections.
  2. Abrogate absolute prosecutorial immunity.
  3. Repeal AEDPA § 2254(d). (Antiterrorism and Effective Death Penalty Act)
  4. Treat prosecutorial misconduct as a civil rights violation.
  5. Give criminal defendants the choice of a jury or bench trial.
  6. Conduct in depth studies of exonerations.
  7. Repeal three felonies a day for three years. (Refers to the fact that there are too many vague, overlapping laws on the books.)

I would add two more to the General category:

•  Have all trial counsel, prosecution and defense, sworn in at the beginning of every trial.

•  Abandon political election of prosecutors.

Tuesday’s Quick Clicks…

Monday’s Quick Clicks…

The New Jersey legislature has passed a bill that will increase the availability of DNA testing for all inmates claiming to have been wrongfully convicted…

The Michigan Supreme Court has granted a new trial for a Michigan Innocence Project client Leo Ackley…

Rhode Island expands law to allow DNA testing for those convicted of any violent crime…

Steve Wax of the Oregon Innocence Project explains the new Oregon DNA testing law

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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Wednesday’s Quick Clicks…

Monday’s Quick Clicks…

Thursday’s Quick Clicks…

Jennifer Thompson Promotes the Justice for All Act

Jennifer Thompson has been featured on the WCB before.  She authored, along with Ronald Cotton, the book Picking Cotton.  Ms. Thompson incorrectly identified Ronald Cotton as the man who raped her, and Cotton spent 11 years in prison before DNA proved he was not guilty.  After his release, Ronald and Jennifer became friends, and co-authored the book, which chronicles the events of the rape and the wrongful conviction.

Ms. Thompson has recently written an op-ed for The Hill in support of reauthorization of the Justice for All Act to ensure that post-conviction DNA testing remains accessible.

See the original posting on The Hill here.  The text of her piece appears below:

October 26, 2014
Harm multiplies when the innocent are wrongly convicted
By Jennifer Thompson

In June of 1995, I found myself on a journey I never wanted, never asked for and never would have wished on another human being. I learned that the man whom I had identified in court as my rapist – the man whose face, breath and evilness I had dreamt about for 11 years – was innocent. The man whom I believed had destroyed me that night, who had stolen everything from me, and whom I hated with an all-consuming rage had lost 4000 days, eleven Christmases, eleven birthdays, and relationships with loved ones. And on June 30th of 1995, Ronald Cotton, the man I had hated and prayed for to die, walked out of prison a free and innocent man.

My rage and hatred had been misplaced. I was wrong. I had sent an innocent man to prison. A third of his life was over, and the shame, guilt and fear began to suffocate me. I had let down everyone — the police department, the district attorney’s office, the community, the other women who became victims of Bobby Poole, and especially Ronald Cotton and his family.

Several years after Ronald was freed, I received a phone call from Bobby Poole’s last victim. I remember hearing her story about what happened to her and realizing that we all had left him on the streets to commit further crimes – rapes — that we possibly could have prevented if Ronald had not been locked up for something he had never done. The knowledge that Mr. Poole had been left at liberty to hurt other women paralyzed me and sent me into a backward spiral that took years to recover from. This journey has taught me that the impact of wrongful convictions goes so much further than a victim and the wrongfully convicted. The pool of victims from 1984 was huge – me, Ron, the police department, our families, and the other women who became victims of Bobby Poole all suffered.

This case crystalized for me why it is so important to have laws in place that protect the innocent. Those laws would be important enough if they only protected the innocent, but they do so much more. They also protect the potential victims of real perpetrators, the families and children of the wrongfully convicted person, and – ultimately – the victim who learns the truth.

The Justice for All Act, which is up for reauthorization by Congress, allows men like Ronald to obtain post-conviction DNA testing that can lead to their freedom and to the conviction of the guilty. Without access to such testing, innocent men will remain in prison, real perpetrators will remain free, and new victims will have to experience the same horrors and indignities that I did. I urge Congress to pass the Justice For All Act now so that we can live in a world where the truly guilty are behind bars and the innocent are free.

Thompson is the co-author with Ronald Cotton of the book Picking Cotton, a memoir they wrote together after DNA testing proved that Cotton had been wrongly convicted of raping Thompson as a college student.

California Governor Vetoes Bill to Protect the Innocent

Jerry Brown, the same California Governor who recently signed an ‘anti-junk science forensics bill‘ into law, has vetoed a bill that would provide protection for the innocent, and hold prosecutors “mildly” more accountable.

The vetoed bill would have allowed judges to inform juries when prosecutors had been caught intentionally withholding exculpatory evidence, which is already a breach of ethics and arguably illegal.  Note that the bill did not even include sanctions for ethics-breaching prosecutors.

See the San Francisco Examiner story here.

See the Washington Post story here.


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.

Sex Offender Registries (SOR’s): TIME-FOR-A-CHANGE

registry swamp

Editor’s Note:  Although this article is clearly editorial in nature, it contains a substantial amount of fact and data that have direct bearing on the subject.  It’s also a long article, and I hope you’ll have the patience to read it through to the end.

The article is in five sections:

The History of Sex Offender Registries in the US

Sex Offender Registries are Manifestly Unjust

Sex Offender Registries Don’t Work

Sex Offender Registries Cost a Lot of Money


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Justice System Reform – Why We Can’t Get it Right. It’s All About Root Cause.

“Chicago police call for tougher penalties for firearm offenses after dozens of people were shot over holiday.”

You may have heard that dozens of people were shot in Chicago over this recent 4th of July weekend.  I just saw the headline above, which is the response from the Chicago police to the tragic weekend.  What struck me immediately is that this reaction is so stupidly human.  But sadly, it’s human nature.  To most, it would appear to be a quick-response, expedient solution to a terrible problem; and it’s the expediency of this “solution” that makes it attractive to both the politicians who make the laws and the constituency that elects them to office. The belief is that we can pass a law, make the penalties harsher, and then say, “There, we solved THAT problem.”  But guess what?  This will NOT solve the problem, and it NEVER will.  The US justice system has a culture of “punishment” and “revenge”.  We always seem to believe that the threat of more severe punishment will serve as a deterrent to future evil-doers.  The standard political response to the problem of “crime” has always been more cops, more prisons, and tougher sentences.  Well … the US already has the most draconian sentencing laws in the world, and yet, even though we have only 5% of the world’s population, we have 25% of the world’s prisoners (see Convictions  by the Numbers).

Doesn’t seem like super-tough sentences have done much to stem the US crime problem, does it?  And we know this.  Yet we, as an electorate, keep insisting from our legislators that there be more cops, more prisons, and ever tougher sentences.  It’s gotten to the point of being downright silly – tragic but silly.

So what should we do?  To fix any problem, you have to understand, and deal with, the root cause.  Unless you eliminate the root cause, the problem will not go away.  You can try to treat the symptoms of the problem (e.g. gun deaths in Chicago), but the problem will persist.  And I don’t believe we even know and understand what the root cause(s) of most crime are. I would expect that they’d have something to do with things like poverty, education, discrimination, culture, mental health issues, and more.

[Editorial observation:  I suspect that so-called “crimes of passion” are something that will always be part of the human condition, and we’re just stuck with them.]

Unfortunately, dealing with root cause is much, much more difficult than dealing with the obvious symptoms of a problem, and I believe this is largely why it doesn’t get done.  It takes lots of time, lots of money, and lots of effort – and who wants to do that when you can just pass a law making sentences harsher, and then tell yourself you’ve just addressed the problem?  It is absolutely human nature to jump to what seems to be the quickest, easiest solution, despite the fact that the “solution” may not cure the problem at all.

There ARE systematic ways to uncover root cause.  They involve structure, process, and data.  Please see our previous post on Six Sigma.  Root cause is at the very core of what Six Sigma is all about.  Unfortunately, given our justice system and our processes for enacting laws, I see no feasible way root cause analysis and corrective action could be applied to the US justice system – at least certainly not within my lifetime.  I expect that we’re just going to have to continue stumbling along with our electoral and legislative processes, and hope that some day enough voters and enough legislators eventually “get it.”

Court Reexamines Arson Murder Conviction In Fort Stockton, Texas

A so-called “Junk Science” law passed in 2013 in Texas has helped enable review of the case of Sonia Cacy, 66, of Fort Stockton. Cacy was convicted of the 1991 murder by arson of her uncle, William Richardson. She has claimed innocence in the fire that swept through the small home they shared. The Innocence Project of Texas has been fighting for several years for her exoneration.

Cacy was sentenced to 99 years in prison but was paroled in 1998 after serving six years. According to the Innocence Project, post-conviction review of the case that included testimony from several experts was successful in securing her release. She’s had difficulty finding employment and housing and has been working for more than 20 years for exoneration to clear her name and her record of the conviction.

Cacy’s lawyers this week presented evidence supporting her innocence in two hearings, Monday and Tuesday, in Fort Stockton. Judge Bert Richardson expects to take several months to release his ruling.

According to several media reports, at trial a Bexar County toxicologist testified to jurors that gasoline was found on Richardson’s clothes, but several fire experts Continue reading