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Cook County judicial candidate, colleague misled jury into wrongful conviction

Why Is It So Hard for Wrongfully Convicted Women to Get Justice?

Cliven Bundy case: How big a problem is prosecutorial misconduct?

Cliven Bundy wanted to walk out of the courtroom in his jail jumpsuit and ankle shackles. Deputy marshals blocked him from doing that. But if it hadn’t been for “flagrant misconduct” committed by federal prosecutors and investigators in the case, the Nevada cattleman may not have been walking out at all.

US District Judge Gloria Navarro dismissed the case, which related to an April 2014 standoff with federal officers seeking to impound Mr. Bundy’s cattle, “with prejudice” this week – meaning prosecutors cannot retry the case on the same charges. “The court has found that a universal sense of justice has been violated” by prosecutors who withheld and misrepresented vast quantities of evidence, she told the courtroom.

The case is a dramatic example of prosecutorial misconduct, which some legal experts see as a cultural flaw in the criminal justice system. Prosecutors are arguably the most powerful actors in the system, in part because they are the gatekeepers for most evidence in a case. Having to provide evidence to a defendant while also seeking to beat them in court understandably can lead to temptation, legal experts say.

“It’s like making your own calls in a basketball game: ‘That wasn’t a foul on me,’ ” says John Raphling, a senior researcher at Human Rights Watch who spent more than two decades as a criminal defense lawyer in California.

“I don’t want to say it’s human nature, but it’s a natural tendency to see things your own way,” he adds, “especially when you’re wrapped up in the competitive world of trying cases.”

Read the full story here.

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Bill would give Norfolk Four $3.5M for wrongful rape, murder convictions

City agrees to pay $9.3 million for wrongful conviction tied to Burge detectives

The Innocence Deniers

Great article about #BlindInjusticeChapter2BlindDenial

Lara Bazelon writes: In an adversarial legal system, it’s natural to presume that prosecutors and defense attorneys are driven by the same goal: to win. They aren’t. In Berger v. United States, decided in 1935, the Supreme Court famously declared that the prosecution’s ultimate goal “is not that it shall win a case, but that justice shall be done.” A prosecutor, the court wrote, “is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.”

 [And yet] some prosecutors—the most powerful actors in the criminal justice system—refuse to correct life-altering errors.


An Unqualified Injustice

By Clark Neily

This article appeared in The Washington Times on January 1, 2018.

One of the most important tools we have for holding police and other public officials accountable is the ability to sue them when they violate our rights. But the Supreme Court has undermined this vital accountability mechanism with a legal fiction called “qualified immunity.” On Friday, the court will have an opportunity to change course by agreeing to hear a case involving a tragic miscarriage of justice.

Andrew Scott was home playing video games with his girlfriend after midnight on June 15, 2015, when someone began pounding on the door to his apartment. The frightened couple retreated to Scott’s bedroom, where he retrieved his pistol and then made his way back to the living room. Carefully opening his front door, Scott saw an armed man and started to back up. The man immediately fired six shots, striking Scott three times and killing him.

The shooter was Lake County, Florida, Sheriff’s Deputy Richard Sylvester, who was investigating an assault and battery involving a dark-colored motorcycle several miles away. Seeing a dark-colored motorcycle in the parking lot outside Scott’s apartment – but making no effort to connect the motorcycle to the assault or to Mr. Scott – deputies surrounded the unit, drew their weapons, and banged on the door without identifying themselves. When Mr. Scott answered the door with a gun in his hand, as he had a constitutional right to do, Mr. Sylvester shot him dead.

Qualified immunity was invented by the Supreme Court out of whole cloth and has no basis statutory text, legislative intent, or sound public policy.

Mr. Scott’s parents filed a lawsuit, and the deputies moved to dismiss on the grounds that they had not violated any “clearly established” right and were therefore entitled to qualified immunity. The trial judge and the court of appeals agreed. The Supreme Court should take the case and dial back qualified immunity for three reasons.

First, qualified immunity was invented by the Supreme Court out of whole cloth and has no basis statutory text, legislative intent, or sound public policy. Federal law provides that police and other state actors are liable for the deprivation of “any rights.”

But the Supreme Court has qualified that standard (hence the term qualified immunity) by substituting the phrase “clearly established” for “any.” That was a blatant act of judicial policymaking, as University of Chicago law professor Will Baude demonstrates in a recent law review article that utterly destroys the originalist pretensions of qualified immunity.

Second, the clearly established standard is both malleable and perverse. It is malleable because it asks whether existing case law was sufficiently analogous to put officers on notice that their conduct was illegal. But the answer to that question nearly always be gamed simply by dialing the level of generality up or down.

For example, the Sixth U.S. Circuit Court of Appeals issued a decision last week, Latits v. Phillips, in which the judges unanimously agreed that a police officer violated the Constitution by shooting a fleeing suspect, but disagreed as to whether the violation was sufficiently clear to overcome qualified immunity. It all came down to their perception of whether existing case law placed the fact of the violation “beyond debate.” One judge said yes, two said no: case dismissed.

The clearly established standard is not just malleable but also perverse because it provides the greatest protection for the worst conduct. Thus, the more outrageous an officer’s actions, the less likely it will be that anyone else has behaved similarly and the harder it will be to find a case on point. Pity the Georgia man who was recently ordered to cut the head off of his own dog by deputies who shot it for being aggressive. If he sues, the deputies might well win precisely because their conduct was so far beyond the pale.

Finally and most importantly, qualified immunity sends police officers false signals about the constitutionality of their actions. Think about it from a cop’s perspective: The law says I’m liable for the deprivation of any right; this guy sued me for violating his rights, but the judge tossed the case; ergo, I must not have violated any of his rights. That is a grave mistake for one officer to make in a single case; the consequences when countless officers commit the same fallacy in hundreds of qualified immunity cases across the nation are horrendous. Just ask the parents of Andrew Scott.


Clark Neily is vice president for criminal justice at the Cato Institute.

Quick Clicks

False Memories: Robert Thorson: How We Shape Our Fallible Memories

Blind Ambition: More Than a Dozen Men Ask Court to Formally Declare Their Innocence

Can Cops Unlearn Their Unconscious Biases?


“Implicit bias” training is spreading to departments around the country. This article looks at what is currently being offered, social-science studies which examine implicit bias, and what should be included during and after trainings are offered.

The hope is an effective training course will positively influence officer behavior on the street and reduce the side-effect harms of implicit bias.

Interview: Peter Neufeld, co-founder of the national Innocence Project, on prospects for state and national forensic-science reform

Grits conducted an interview with national Innocence Project co-founder Peter Neufeld discussing forensic-science topics including the abolition of the national forensic science commission, of which Neufeld was a member and DNA mixture controversies. You can listen to the full interview and read the transcript of the interview here.

17 years after being convicted of a grisly murder in Vegas, Kirstin Lobato sees her charges dismissed.

Blind ambition, tunnel vision, and blind denial all played a role in Kirstin Lobato’s case. Read the details of the gruesome murder, the ignored evidence, how Lobato was convicted, and the prosecution’s post-conviction arguments that failed to keep Lobato incarcerated here. 

The robot that knows when you’re lying: Scientists create an AI that can detect deception in the courtroom.

Looks at this. It appears to be based on the premise that certain facial movements definitely indicate lying in all humans. That is a faulty premise. The robot is 92% accurate at picking up those facial expressions, which the manufacturer equates with 92% accuracy in lie detection. I call BS!


Here’s What The Science Says About Why We Get Déjà Vu  


 Not on point but interesting new article on how memory works...



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How unreliable bitemark evidence played a key role in wrongfully convicting NJ man of murder

New York’s Highest Court Rules that Juries Should be Briefed on Problems with Cross-Racial Identification

Are We Witnessing The Death Of The Death Penalty?

Will augmented reality make lying obsolete?


Junk Science of the future. Just like lie detector tests today some things cannot be measured accurately enough to ever be used in court.

Call for Papers Innocence Network Conference:

Lockup nation: The problem with prisons in America

No Country imprisons a larger share of its people than America. Its incarceration rate—693 of every 100,000—is nearly five times Britain’s, six times Canada’s and 15 times Japan’s. And that rate masks huge variations: Washington, DC, Louisiana and Georgia each lock up more than one in every 100 residents. Why?


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It’s time to abolish the coroner

Orange County’s Informant Scandal Yields Evidence of Forensic Science Deception in Murder Trials

Chicago approves paying $31M to 4 wrongfully convicted men

‘Tough on crime’ used to win votes. Now it’s all about criminal justice reform


This article looks at tough on crime smear campaigns and a new trend in gallop polls for criminal justice reform.  What is to be gained from a tough on crime campaign? Haggerty and Rizer argue nothing and politicians have little to lose when campaigning for the reduction of the incarcerated population.

A criminal outrage revealed by Netflix is undone by a federal court

Making of a Murderer’ inspires a bitterly contested decision

Steve Drizzen wrote in response to this article:

James Warren calls Brendan Dassey’s conviction a “criminal outrage.” I am glad to see that the Seventh Circuit decision compelled Jim to put pen to paper — he usually doesn’t weigh in on federal court criminal law decisions. But his wife, Cornelia Grumman, won a Pultizer prize at the Chicago Tribune, in part, for her editorials about the unique vulnerability of children to police pressure and the problem of false and coerced interrogations of juveniles. I disagree with Jim in one respect — I think Cornelia’s work demonstrated that there are no limits to what journalists can accomplish. Cornelia’s relentless work on the editorial pages of the Tribune (along with great investigative reporting by Steve Mills, Maurice Possley, and Ken Armstrong) not only helped lead to the abolition of the death penalty in Illinois but also led Illinois to become the first state to enact laws requiring police to record interrogations (of adults and juveniles) and to require that children be represented by counsel during police interrogations. Hopefully, Jim’s piece will just be the first of many from commentators, both usual suspects and unusual suspects from all walks of life, in the days to come. There may be some new limits to journalism, and the editorial pages of newspapers don’t quite hold the sway they once did in this age of social media, but what we need now is a consistent drumbeat of commentators from all walks of life, calling for greater protections of children during interrogations — in schools and in the stationhouse — and in the courts. If watching Brendan’s interrogation made your “skin crawl”, if you believe that a profound “miscarriage of justice may have occurred” in Brendan’s case, follow Jim’s lead. Be part of that drumbeat.



Judge identifies 12 huge lies about justice in America

Matthew Speiser reviews Judge Alex Kozinski’s (one of America’s most prominent jurists,) new article attacking many assumptions about criminal justice in the US. The assumptions range from eyewitness identification and prosecutorial misconduct to forensic evidence. Read about the 12 assumptions here.

Conviction dismissed, Robeson County man freed from prison after more than 4 years

Sharp said, “Wrongful convictions, we don’t hear a lot about them. Being overturned. And when we do, they are often cases in which the defendant have been incarcerated for decades. Henry McCollum, Leon brown, 31 years. For Henry on death row before being exonerated. And in that case he was exonerated only through DNA evidence right. And so this was a case where there was no physical evidence against Timothy (Britt) to begin with. Which at the trial level that makes the case, defense case stronger. Right, there’s no physical evidence. But from a post conviction standpoint, it often makes it more difficult to prove someone is innocent, if you don’t have that physical evidence to exonerate down. And so I would you say that this is a case of hope. And I hope that it will give that to other people who are similarly situated. Other people who’ve been wrongfully convicted. Who thinks that there’s just not a chance for them. I think this is a story of hope for them.”

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