Category Archives: Reforming/Improving the system

Two Travesties of Justice and Not a Single Apology in Sight

Anyone interested in criminal justice knows that our system is broken. Two recent cases out of Louisiana highlight just how broken our system really is.

 

The first case is about a now-senior citizen named Wilbert Jones, who was released last week from prison after serving 45 years for a rape he didn’t commit. Presidents Nixon, Ford, Carter, Reagan, Bush, Clinton (twice), Bush (twice), Obama (twice) came and went, while this innocent man languished in prison waiting for a miracle to occur.

 

Mr. Jones was a poor, black teenager in 1972 when he was arrested. He was convicted of abducting a white nurse from a hospital parking lot and raping her, and was sentenced to life without parole. The case against him was weak, resting solely on the nurse’s questionable identification of Mr. Jones made nearly three long months after the rape had occurred.

 

The prosecutor involved in the case appears to have withheld crucial evidence from the defense, including the identity of another man, accused of a rape in a difference case who better matched the nurse’s description of the suspect. This apparently was not uncommon: the prosecutor in Mr. Jones’ case had a reputation of routinely violating his constitutional obligations to turn over exculpatory evidence to the defense.

 

It took the Innocence Project New Orleans nearly 15 years to gain Mr. Jones’ freedom. And here’s the kicker. Even though the prosecution has said they will not seek to re-try Mr. Jones, they nonetheless requested that bail be set at $2,000. Even more outrageously, the judge granted the bail motion. Let me repeat: a judge set bail for a 65-year-old man who spent 45 years in prison for a crime he did not commit in a case where the prosecution is not planning to re-try him.

Seriously?

 

Keeping with the theme of outrageous, last week Kevin Smith was released from a New Orleans jail, after serving nearly eight years without ever having been convicted of a crime. In 2010, Mr. Smith was arrested for a non-violent drug offense and placed in the county jail, where he sat, and sat, and sat some more, awaiting his day in court. His case was delayed because of a hurricane, because of a competency hearing, because of motions and who-knows-what else as lawyers for both sides hemmed and hawed about moving forward with the case. In the meantime, Mr. Smith rejected a plea offer of 10 years, which would have ended his sentence in 2015, and finally filed his own motion to be released, arguing that his constitutional right to a speedy trial had been violated. After his lawyers joined his motion, a judge set Mr. Smith free. He earned the dubious honor of having spent the most time in pre-trial detention for a non-violent offense.

 

Louisiana has the highest rate of incarceration in the country. It is rife with allegations of corruption and misconduct. It disparately impacts poor people of color. The system is simply not working, and it is time for places like Louisiana to do something about it.

 

Mr. Jones and Mr. Smith are owed far more than an apology by Louisiana. In the meantime, a mea culpa by the State would be a good start.

This piece also appeared in the Huffington Post.

 

The Terrible Old Rule that Undermines Conviction Accuracy

Samuel Gross has provided an insightful commentary in response to the U.S. Supreme Court’s June 22 vote (6 to 2) in Turner vs. United States, that affirmed the murder convictions of seven men and reaffirmed “a terrible old rule that has done great harm to the accuracy of criminal trials…”

A professor of law at the University of Michigan and founder and Senior Editor of The National Registry of Exonerations, Gross notes that in half of more than 800 exonerations since 1989 in which people had been wrongly convicted of murder, the prosecution had concealed exculpatory evidence at trial.

Students of the law and of wrongful convictions recognize these instances as Brady violations. In 1964, in Brady v. Maryland, the high court ruled that the government is obligated to disclose evidence that is favorable to the defense if it is “material” to the case. “Materiality” was later further defined as having a “reasonable probability” that the outcome of the trial would have been more favorable to the defendant if the evidence had been disclosed.

But can this rule be accurately applied? Is there a better way that could cure this nation’s “epidemic” of Brady violations? Gross answers both questions in his commentary, “How Concealing Key Evidence Convicts the Innocent.”

UK: Reports Point to Ongoing Disclosure Failings – Cause of Miscarriages of Justice

cardiff3Two very interesting reports have been published in the UK, both detailing the continuing crisis in disclosure, which is key to a just criminal process and crucial in ensuring a fair trial and preventing miscarriages of justice. Yet numerous reports and reviews always find disclosure to be a serious problem among the police and prosecuting authorities (the Crown Prosecution Service (CPS) in England and Wales).

Firstly, in a joint report by Her Majesty’s Inspectorate of Constabulary (a national oversight body for the police) and Her Majesty’s Crown Prosecution Service Inspectorate (providing oversight of the CPS), the findings are yet again damning:

“The inspection found that police scheduling (the process of recording details of both sensitive and non-sensitive material) is routinely poor, while revelation by the police to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare. Prosecutors fail to challenge poor quality schedules and in turn provide little or no input to the police. Neither party is managing sensitive material effectively and prosecutors are failing to manage ongoing disclosure. To compound matters, the auditing process surrounding disclosure decision-making falls far below any acceptable standard of performance. The failure to grip disclosure issues early often leads to chaotic scenes later outside the courtroom, where last minute and often unauthorised disclosure between counsel, unnecessary adjournments and – ultimately – discontinued cases, are common occurrences. This is likely to reflect badly on the criminal justice system in the eyes of victims and witnesses.”

As well as a series of pragmatic recommendations, the report authors refer to a needed change in ‘culture’: “However, just as importantly as responding to each issue, is a need for a change in attitude to ensure that disclosure is recognised as a crucial part of the criminal justice process and that it must be carried out to the appropriate standards.”

The Criminal Cases Review Commission reported in their 2015/2016 Annual Report that they have seen a “steady stream” of miscarriages where the primary cause was a failure to disclose exculpatory evidence to the defence. The inspection concentrated upon ‘volume’ crime – as the focus on serious crime means that those cases considered less serious are often given a low priority – yet individuals are routinely remanded in custody, convicted and imprisoned wrongly on ‘minor’ charges. Read the Inspectorate report here: MAKING IT FAIR: A JOINT INSPECTION OF THE DISCLOSURE OF UNUSED MATERIAL IN VOLUME CROWN COURT CASES, JULY 2017.

Secondly, the case of the Cardiff Three – one of the most notorious miscarriages of justice in British history, led to the trial of 8 police officers for their role in the arrest and prosecution of five men (three were convicted). However, the case collapsed after crucial evidence went ‘missing’. An inquiry into the collapsed trial has now reported after 2 years, and concluded that the collapse (the missing evidence subsequently surfaced after the police staff were formally acquitted) was due to ‘human error’ and not ‘wickedness’.  The report makes 17 recommendations for the disclosure process – the author stating: “Disclosure problems have blighted our criminal justice system for too long and although disclosure guidelines, manuals and policy documents are necessary, it is the mindset and experience of those who do disclosure work that is paramount.”

Read the full report here: Mouncher investigation report, July 2017

Media reports here: Trial of Cardiff Three police collapsed due to human error, inquiry finds

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New York passes massive innocence reform bill…

From The Innocence Project:

(Albany, NY — April 10, 2017) – The New York Legislature has passed the FY18 budget that incorporated reforms which will greatly reduce wrongful convictions. Specifically, these changes will mandate law enforcement to record interrogations and adopt standardized best practices for conducting police lineups, and respective safeguards to prevent false confessions and eyewitness misidentifications.

“We applaud lawmakers in Albany for taking a tremendous step forward in protecting New Yorkers from wrongful convictions,” said Barry Scheck, co-director of the Innocence Project, which is affiliated with Cardozo School of Law. “I want to especially thank the governor for sticking by these key reforms right through the end of this process, and Assemblyman Joe Lentol for championing the wrongful conviction bill over the past 10 years.”

“The provisions mandating the recording of interrogations are some of the most stringent in the country, which we know will makes a huge difference in preventing false confessions,” said Peter Neufeld, co-director of the Innocence Project. “The new rules for identification procedures, which require that the lineups be conducted by an officer that is unaware of the identity of the suspect, include the most critical reforms. These changes will immediately make a tremendous difference in establishing a reliable and accurate criminal justice system.”

There have been 224 wrongful convictions overturned in New York. In the 30 that have DNA-based evidence, misidentification or false confession played roles in all of them. This ultimately means that every time someone is wrongfully convicted and incarcerated, the person who committed the crime went free, posing a threat to public safety and committing more crimes.

“This has been a long time coming for those of us who have suffered the horror of being imprisoned for a crime someone else committed. No financial settlement or words can replace the decades stolen from us and our families. However, knowing we have finally changed New York law gives us some solace and hope for the future,” said Yusef Salaam, a member of the Central Park Five and now an advocate for interrogation reform.

“We have worked over the years to make sure that what happened to us 28 years ago doesn’t happen to anyone else. It’s incredible to know we finally have made a difference, and maybe our conviction, as terrible as it was, has some meaning,” said Raymond Santana, also a Central Park Five exoneree and New York advocate.

Kevin Richardson, also exonerated of the notorious Central Park jogger rape case, and now a criminal justice advocate added, “If this had been law when we were interrogated, we may have never seen the inside of a prison, but now we can say, these long–awaited changes shows New York’s commitment to preventing the crime of putting innocent people behind bars and allowing the guilty to remain free.”

Rebecca Brown, policy director for the Innocence Project added, “Getting this critical legislation passed wouldn’t have been possible without the help of many people, but especially New York exonerees who never missed an opportunity to explain to lawmakers why these reforms are needed to prevent other people from being wrongly convicted.”

New York has 35 exoneration cases that involved false confessions and 76 where witness misidentification was a factor. If electronic recording of entire custodial interrogations had already been adopted, these numbers would likely be much lower. Recording is the most commonly recommended safeguard against wrongful convictions stemming from false confessions. It deters against coercive or illegal interrogation practices and alerts investigators, judges and jurors if suspects have mental illness, intellectual disabilities or other vulnerabilities that make them more susceptible to false confessions.

The U.S. Department of Justice, National Academy of Sciences and International Association of Chiefs of Police all recommend identification best practices—which includes using a “blind administrator” who is unaware of the suspect’s identity to conduct a lineup and therefore unable to provide unintentional cues—for reducing the risk of eyewitness misidentification.

“We applaud the governor, the legislative leaders and the entire legislature for passing this law to address wrongful convictions, by requiring video recording of custodial interrogations involving serious crimes and reforming eyewitness identification procedures—a long-standing legislative priority of the New York State Bar Association,” New York State Bar Association President Claire P. Gutekunst commented. “The new law is a positive step toward addressing wrongful convictions and rebuilding public trust and confidence in New York’s criminal justice system. It is essential to ensure that those who are innocent of crimes remain free and that the guilty are not free to commit more crimes. Wrongful convictions erode that fundamental tenet of our society.”

“Today, we embrace the passage of the New York Budget. In 2008, I first testified for the passage of legislation that required the electronic recording of interrogations.  Year after year, when called upon, I testified before the senate, assembly, city council—anywhere my voice could be heard.  Hopefully, from this day forward, interrogations will be recorded and we can avoid as many wrongful convictions as possible,” said Marty Tankleff, a New York exoneree, attorney and advocate.

Judge Jonathan Lippman, Chief Judge of the New York Court of Appeals remarked: “I could not be more delighted that the wrongful conviction legislation for which we have fought for so long has finally passed. I salute the Innocence Project for its stellar leadership and unswerving commitment to ensuring that this day would come to pass. The work of the Innocence Project and the court system’s own Justice Task Force paved the way for this monumental achievement. Today, New York moves one step closer to making the ideal of equal justice a reality each and every day in our state.”

New York has now joined 20 additional states that employ the blind administration of lineups and is 1 of 22 states that require the recording of interrogations.

This critical budget bill had recently gained strong support from the New York Hotel Trades Council and their President Peter Ward, placing their efforts behind what has been a decade-long advocacy campaign for the Innocence Project.

Many players have helped see this bill to fruition and it would not have been possible without the help of the New York State Bar Association and former president Glenn Lau-Kee;  Peter Ward and the New York Hotel Trades Council; Families of the Wrongfully Convicted and Lonnie Soury;  Kevin Richardson, Yusef Salaam, Raymond Santana, Jarrett Adams, Sharonne Salaam, Marty Tankleff, Jeff Deskovic, Johnny Hincapie, David McCallum, Derrick Hamilton, Shabaka Shakur, Steven Barnes, Sylvia Barnes, Frank Sterling, Al Newton, Fernando Bermudez, Everton Wagstaffe, Doug Warney, Kevin Smith, Dewey Bozella, Barry Gibbs and Alice Lopez, widow of William Lopez.

 

Trump Administration kills Forensic Commission

Horrible, horrible news for those who care about accuracy in our criminal justice system.  Read story here.

 

Federal Judge Overturns Arizona’s Diaper Changing Child Molestation Law

Arizona’s justice system is truly something to behold. After all, it’s the home of Sheriff Joe Arpaio. And get this – Arizona’s Attorney General and Maricopa County’s Attorney have publicly stated that there are “no” wrongful convictions and “no” Brady violations in Arizona. Really?!   Arizon Bradypdf

But here’s one for the books. Arizona actually has a law that says anyone who knowingly and intentionally touches a child’s genitals is guilty of child molestation – without a requirement of sexual intent. So anyone who changes a child’s diaper or bathes a child can be charged with child molestation. All it takes is a vindictive spouse or partner, or even just a casual witness (eg: changing a baby’s diaper in a public restroom) to make a charge. And as you certainly would guess, numerous innocent parents and caregivers have been ensnared by this law.

When the Arizona legislature wrote and passed the law, they specifically removed the requirement for sexual intent. The governor signed it, and the Arizona Supreme Court upheld it.

Recently Federal District Judge Neil V. Wake, in a testy opinion, ruled the law unconstitutional. See that ruling here.  Thank goodness sanity has prevailed. Hopefully this will eventually lead to relief for all those wrongfully imprisoned by this bogus statute.

Last week Judge Wake also overturned the conviction of Stephen May, a school teacher and swim instructor, who was convicted largely based upon this law’s definition of child molestation.  See the article by Jacob Sullum on Reason.com  here.

See the story by Mark Joseph Stern writing for Slate here.

Thursday’s Quick Clicks…

  • Maine law makers consider expanding timeframe for inmates to bring innocence petitions with new evidence beyond current one-year limit; prosecutors oppose.
  • New study suggests that when indigent defendants get to choose their public defender, the system works better
  • A new bill under consideration in Montana would require prosecutors to tell defendants that they plan to use an incentivized witness and the terms of the deal made in exchange for testimony. It also would allow defense counsel to request a pre-trial hearing where a judge can weigh the credibility of the testimony and if there is enough other evidence to corroborate the witness’ story. The judge could then choose to bar the testimony as inadmissible or issue a jury instruction, similar to how courts currently review the credibility of some scientific witnesses before a trial starts.
  • Dallas’ exonerees mission to free the wrongfully convicted is the focus of a new film

Maryland Justice Professional Opposes Revisiting Death Penalty

“At a time when there are calls for criminal justice reform, it is important to ensure any reforms are based on sound research and data-driven, fact-based information. Calls for re-establishment of the death penalty in Maryland are not based on the aforementioned.” — Karl Bickel

Karl Bickel, a career law enforcement officer and former proponent of the death penalty, has offered a well-researched argument against making any exception to the repeal of Maryland’s death penalty, implemented in 2013. The state has opted for life in prison without the possibility of parole for its worst offenders. House Bill 881, introduced on February 6, 2017, calls for an exception for first-degree murder cases in which the victim is a law enforcement officer, correctional officer, or first responder.

A key issue for Bickel is avoiding the risk of wrongful conviction and execution of an innocent.

Bickel is retired from the Department of Justice, and has been a major city police officer, an assistant professor, and second in command of the Frederick County (MD) Sheriff’s Office.

Read his commentary here.

The National Registry of Exonerations has identified 116 cases in which a person was wrongly convicted of murder and sentenced to death, before being exonerated.

New Attorney General Jeff Sessions “Tough on Crime”

The newly anointed US Attorney General, Jeff Sessions, in his first major address has proclaimed a policy of “tough on crime” – particularly violent crime.

Here we go again – the “war on drugs” redux. How many prosecutors have been elected running on a “tough on crime” platform? I would say most, if not all.

So how do prosecutors “deliver” on their campaign promise of “tough on crime?” They arrest a lot of people, obtain a lot of indictments, secure a lot of convictions, and send a lot of people to prison. The only problem? A lot of these people may be actually innocent. But they’ve been scooped up into the frenzy of proving that law enforcement is “tough on crime.” People get convicted through intimidating and coercive plea bargains, phony evidence and false testimony, bad forensics, and police and prosecutor misconduct.

Criminal prosecution MUST rest upon the foundations of truth, logic, real evidence, and prosecutorial ethics – not upon hysteria hyped by politicians and the media.

You and see the CNN coverage of Mr. Sessions address here.

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Columbus Will Pay Ohio Innocence Project For Witholding Public Records

Click to read the original article and listen to the WOSU interview

The city of Columbus and a group that works to free wrongly convicted people ended a years-long fight this week.

The city will pay $19,000 dollars for legal expenses incurred by the Ohio Innocence Project, which is based out of the University of Cincinnati school of law. Columbus will also pay the Ohio Innocence Project $1,000 in damages for illegally withholding public records.

Attorney Donald Caster, a clinical professor of law at the University of Cincinnati who works for the Project, explained in an interview with WOSU how the case unfolded and what it means for transparency in the state.

The below is an automated transcript. Please excuse minor typos and errors.

Sam Hendren: When did the Ohio Innocence Project first encounter resistance from the city of Columbus to public records requests?

Donald Caster: We’ve been encountering resistance from Columbus for several years. Sometimes we could work around the resistance with the Franklin County prosecuting attorney and sometimes we couldn’t. We noticed that it wasn’t just Columbus, it was other areas in Ohio as well. So at some point we decided that we needed to challenge the law enforcement agencies who were telling us that we weren’t entitled to get public records to investigate claims of innocence.

Sam Hendren: So the Ohio Supreme Court then did what?

Donald Caster: The first thing that happens is the filing of a complaint. The city of Columbus then filed an answer and a motion to dismiss the complaint and said, “Look, even if everything the Ohio Innocence Project is saying is true, they’re still not entitled to relief.” The Ohio Supreme Court turned down that motion in order and ordered us to submit full briefs on the case. We did that.

The Ohio Supreme Court then heard oral arguments, they heard from the attorneys for the city of Columbus, they heard from attorneys for me and the Ohio Innocence Project, in this case Fred Gittes and Jeff Vardaro of the Gittes law firm. And then they eventually issued a decision just after Christmas.

Sam Hendren: And that decision says what?

Donald Caster: That decision says that a case that law enforcement agencies had been relying on, a case called “Steckman,” which suggested in some ways that public records pertaining to criminal cases would never be accessible until a particular defendant or inmate were released from prison, is no longer good law. And it’s no longer good law because some of the rules that control pretrial discovery between the state and the defendant had changed.

So the Ohio Supreme Court said it didn’t need that rule any more. Now as soon as a criminal case is done, as soon as the trial is over, the public can go ahead and seek those records out from law enforcement agencies.

Sam Hendren: Because in one or perhaps many more cases, the city of Columbus for example was withholding records from the Ohio Innocence Project for decades.

Donald Caster: And what Columbus was saying was that they were going to withhold the records for decades. In this particular instance they said you won’t be entitled to these records until the defendant in the case your researching is done serving his entire sentence. In this case, it’s a life sentence, so it would have been upon the defendant’s death.

Sam Hendren: Now we’re talking about Adam Saleh, who was imprisoned or who is imprisoned for killing a woman named Julie Popovich.

Donald Caster: That’s correct.

Sam Hendren: Right. Why is it important to have timely access to documents that the police department was refusing to hand over?

Donald Caster: For a couple of reasons. First of all, from a general standpoint, in Ohio we value the transparency of our public servants and that means being able to access the documents that they generate and that they rely upon in making our decision. From the standpoint of post-conviction work, of helping free people who have been wrongfully convicted, oftentimes the only way that we can prove that something went wrong at trial is to access the public records about that case.

Sam Hendren: And what has been the track record of the Innocence Project? Have innocent people been freed?

Donald Caster: That’s correct. We’ve been around since 2003, and since 2003, 23 people have been released on grounds of innocence as a result of our work

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