Category Archives: Reforming/Improving the system

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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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A Case for Justice Reform in 2017

The year 2016 will go down as a good one for Freddie Peacock. But because it was so long in coming, it surely must be bittersweet. His story illustrates the slow pace and enormous hurdles in correcting criminal justice miscarriages post-conviction. It also calls on our individual and national conscience to make 2017 the year responsible citizens send the message loud and clear to all public and criminal justice professionals that this nation must replace the mantra of “tough on crime” with “smart on crime.” In the Peacock case we learn many lessons about wrongful conviction rarely delivered so clearly by a federal judge.

In August 2016 U.S. District Judge Michael Telesca awarded Freddie Peacock nearly $6.2 million long after Peacock’s conviction of and imprisonment for a 1976 Rochester (NY) rape he didn’t commit. Peacock had sued the city of Rochester and Rochester police. Judge Telesca’s decisions in May (here) enabling Peacock to pursue civil damages and in August (here) determining his damages are instructional for those who believe wrongful convictions are the inevitable rare result of innocent human error. Continue reading

Prosecutorial Misconduct is Now a Felony in California

One of, if not the most, frequent occurrences of prosecutorial misconduct is withholding exculpatory evidence from the defense; which prosecutors are required by both law and ethics to share. The state of California has taken this “bull by the horns,” and made withholding evidence by prosecutors a criminal felony.

Under the new law, prosecutors who alter or intentionally withhold evidence from defense counsels can face up to three years in prison.

EVERY one of the remaining 49 states needs to follow this example. This is a major step in establishing the kind of accountability prosecutors MUST face if we are to ever achieve the necessary level of ethical conduct on the part of prosecutors.

See the reason.com story here.

 

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