Book Review: “Forensic Science Reform – Protecting the Innocent”

 

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For the last 8 1/2 years, I have been working to ‘help’ overcome the devastating effects that incorrect, bogus, and non-scientific forensics has had on our justice system in producing wrongful convictions.  And I’ve also been writing about it on this blog since its inception.

C.M. (Mike) Bowers has teamed up with Wendy Koen to produce a definitive work addressing many of these issues. Mike is forensic dentist who has been at the forefront of debunking the junk science of bite mark analysis. Wendy Koen is a former attorney with the California Innocence Project. Mike also maintains the website CSIDDS dedicated to promoting truth, reason, logic, and actual science in the discipline of forensics.

The data below from the National Registry of Exonerations shows that false or misleading forensic evidence is a contributing factor in 24% of all the wrongful convictions logged by the registry to date.

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This book provides substantial reinforcement for the ground-breaking “NAS Report,” published in 2009. Please see:  https://wrongfulconvictionsblog.org/2013/06/29/the-nas-report-aftermath/  However, this book also includes material not covered by the original NAS report. This book is a “must” for the library of anyone committed to ensuring that ALL forensics is based upon true science, logic, reason, and fact.

Justin O. Brookes, Director of the California Innocence Project: “My former brilliant student, Wendy Koen, along with Dr. Michael Bowers (the expert behind the Richards’ exoneration) have written a new book you all should consider ordering–“Forensic Science Reform:Protecting The Innocent.”  It’s an excellent addition to the scholarship in our world and could be helpful to those of you struggling with forensic issues. I’m going to have our library order a hard copy.”

Valena Beety, Deputy Director of the WVU Law Clinical Law Program, chairing the West Virginia Innocence Project: “I’ve just ordered it for our law library at WVU and I anticipate it being a helpful resource. Thank you to everyone involved in making this book happen!”

You can purchase the book here: https://www.amazon.com/Forensic-Science-Reform-Protecting-Innocent/dp/0128027193/ref=mt_hardcover?_encoding=UTF8&me=

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

Wednesday’s Quick Clicks…

Jeffrey MacDonald actual innocence appeal

Dr. Jeffrey MacDonald, the former Green Beret surgeon who was first cleared in the murders of his pregnant wife and two daughters and then convicted in 1970, will have what may be his final chance at overturning his conviction after spending the past 36 years in prison for a crime that many experts now believe he did not commit.  Oral arguments before a federal appeals court will commence on January 26.  The crime took place prior to the use of DNA analysis and new DNA evidence and a lot of other evidence, including evidence of prosecutorial misconduct, flawed forensic testimony, and botched crime scene analysis, provides powerful support for his story that intruders killed his family in what was in some ways similar to the “Manson family” murders in that same era.  People Magazine investigative reports will culminate in its major cover story, available on newsstands on Friday, January 20.  Here is a link to the People Magazine digital story today that precedes the cover story:

Former Green Beret Surgeon Jeffrey MacDonald Says There’s Evidence He Didn’t Kill His Family: ‘I Am Innocent’

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How Many Indigenous Prisoners In Australia Are Innocent?

An interesting question, with, I suspect, a terrifying answer. But who knows when miscarriages of justice in Australia are so notoriously difficult to overturn. Particularly if you are an indigenous prisoner, as this article points out:

For Aboriginal people who already have the justice system stacked against them, the avenues to protest a guilty verdict are limited, and it is unlikely you will be believed.

image-20160726-24908-1or4wo6Remember that Aboriginal and Torres Strait Islander people are massively overrepresented in the criminal justice system of Australia.Aboriginal people represent only 3% of the total population, yet 28% of Australia’s prison population are Aboriginal.

This podcast details one case in particular of a suspected miscarriage of justice – of an Aboriginal man sentenced for a murder in 1991, that it is highly unlikely he was involved with despite his confession (most of which was thrown out of court for being involuntary). This is a case that is worthy of support – but points to a deeper problem: that there are most likely to be many many more like it, hidden from view not just because of the systemic hurdles in overturning wrongful convictions, but the almost blissful ignorance of the public that there are serious flaws in their justice system that only very rarely come to the surface.

Read more here… Curtain And The Case For Freedom: How Many Indigenous Prisoners In Australia Are Innocent?

 

Wednesday’s Quick Clicks…

Innocence Project Northwest Client Freed

Lester Juan Griffin Jr. walked free last week after serving 8.5 of a 24-year sentence for burglary and assault.  Story here, earlier decision in the case, overturning conviction, here.  Congrats IPNW!

Monday’s Quick Clicks…

 

DOJ recommends eyewitness ID best practices for all federal law enforcement

From DOJ press release:

(Washington, D.C. – January 6, 2017) Today Deputy Attorney General Sally Yates issued a memo to federal law enforcement agencies and prosecutors recommending that all departments adopt eyewitness identification procedures that have been scientifically proven to reduce misidentification.  The recommendations include those from a 2014 National Academy of Sciences (NAS) report that reviewed three decades of basic and applied scientific research on eyewitness identification as well as recommendations included in President Obama’s Task Force on 21st Century Policing. The Innocence Project has long advocated for these eyewitness identification best practices as a way to prevent eyewitness misidentifications, which have contributed to 70 percent of the wrongful convictions later overturned by DNA evidence in the United States.

 

“We applaud Deputy Attorney General Sally Yates for taking such a critical stance to prevent wrongful convictions,” said Peter Neufeld, co-director of the Innocence Project, which is affiliated with Cardozo School of Law.  “The recommendations she has made to all federal law enforcement agencies and prosecutors are based on the best science on memory and identification and will go a long way toward preventing injustice and ensuring that the real perpetrators of crimes are identified.”

 

The recommendations to federal law enforcement agencies include:

 

  • The officer administering the identification procedure should be unaware of the identity of the suspect so that he or she can’t intentionally or unintentionally influence the witness;
  • The witness should be told that the perpetrator may or may not be present in theprocedure and that the investigation will continue regardless of whether he or she selects a suspect;
  • Photos should resemble the witness’s description of the perpetrator; and
  • Immediately following the procedure, the witness should be asked to describe in his or her own words how confident he or she is in the identification.

 

The recommendations apply to all federal law enforcement agencies, including the Federal Bureau of Investigation, United States Marshals Service, Federal Bureau of Prisons, Bureau of Alcohol, Tobacco, Firearms and Explosives, Drug Enforcement Administration and the Office of the Inspector General.  Nineteen states have already adopted these best practices through law, policy or court action, and many jurisdictions around the country have voluntarily adopted policies embracing these practices.

 

“By making these important recommendations, the Department of Justice has recognized the value of evidence-based practices which will improve the quality of evidence and protect the innocent. This is a step forward in a sea change that we have observed at the state level. Just four years ago, only 7 states had implemented best practices in this area; today, that number has nearly tripled to 19 states,” said Rebecca Brown, Innocence Project policy director.  “This is also reflective of leadership in the law enforcement community, from the International Association of Chiefs of Police’s Model Policy on Eyewitness Identification, which was issued in 2010, to the recommendations of the President’s Task Force of 21st Century Policing just this year, which called for implementation of scientifically supported procedures and specifically highlighted the recommendations of the NAS Report.”

 

According to the Innocence Project, eyewitness misidentification contributed to 70 percent of the 347 wrongful convictions that were later overturned by DNA evidence.  The real perpetrators were eventually identified in 98 (40 percent) of these cases.  While the innocent were languishing behind bars in these cases, the real perpetrators committed an additional 100 violent crimes.

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.

 

Friday’s Quick Clicks…

Call for Papers Innocence Network Conference

The Innocence Network is now seeking papers for presentation at the 2017 Innocence Network Conference. See below for details.

The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2017 Innocence Network Conference in San Diego, California on March 24-25(http://www.innocencenetwork.org/conference).

Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction. International papers are welcome but must be submitted in English. Please submit a title and paper proposal to the Innocence Scholarship Committee at this Gmail account: innocencescholarship@gmail.com by February 1, 2017. Paper proposals must be no more than 200 words. Completed drafts must be submitted to the Committee by March 17, 2017.

The Innocence Scholarship Committee is actively seeking publication for those papers accepted for Conference presentations in a law review symposium edition. More information about that is forthcoming.

The Innocence Scholarship Committee is composed of the following Members: Professor Aliza Kaplan, Oregon Innocence Project, Lewis & Clark Law School, Portland, Oregon; Professor Valena Beety, West Virginia Innocence Project, West Virginia College of Law; Professor Keith Findley, Wisconsin Innocence Project, University of Wisconsin Law School; Professor Stephanie Roberts Hartung, New England Innocence Project, Northeastern Law School; and Associate Clinical Professor Paige Kaneb, Northern California Innocence Project at Santa Clara Law.

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“San Antonio Four” Exonerated in Child Rape Case

Yet another classic case of self-serving adults forcing/coercing children to lie about sexual assault that never happened.

This is a scenario that is all too common. In innocence work, we see it regularly; for example, the Courtney Bisbee case.

See the CNN story here.