Sunday, February 12, 2017

Can the President “Destroy” Criminal-justice Reformers?

The following article by Sarah Stillman was published in The New Yorker on February 11, 2017.

On Tuesday, President Trump hosted a group of county sheriffs at the White House, where he spurred a now-infamous exchange with a lawman from Texas. The back-and-forth went like this: Trump asked the sheriffs if they had any ideas on “how we can bring about law enforcement in a very good, civil, lovely way,” in order to “stop crime.” Sheriff Harold Eavenson, of Rockwall County, Texas, fired first. “Asset forfeiture!” he called out. “We’ve got a state senator in Texas that was talking about introducing legislation to require conviction before we could receive that forfeiture money.”

“Can you believe that?” Trump interjected.

“And I told him,” the sheriff continued, “that the cartel would build a monument to him in Mexico if he could get that legislation passed.” Trump was eager for details. “Who’s the state senator?” he asked. “Do you want to give his name?”

The sheriff shrugged. He wore the conflicted smile of a child who’d just tattled on a sibling, only to realize, upon dad’s approach with a belt, the stakes of what he’d unleashed. Trump pushed on, saying, of the senator, “We’ll destroy his career.” Obsequious laughter flowed.

If some dismissed the President’s threat as a joke—however cruel or misguided—the issue it referenced can’t be dismissed so easily. In what appeared to be an act of improvisation on a major public policy, the President endorsed the sheriff’s comments on the alleged evils of civil-asset-forfeiture reform. And this matters, because Eavenson’s characterization of the practice obscured a significant truth. Civil forfeiture—the practice of authorities seizing goods they believe are the fruits of crime—is far less frequently used against bona-fide cartel kingpins than it is against individuals who’ve not been proved guilty of crimes. Often, it’s used against people who haven’t even been accused of any wrongdoing. And, though Trump’s “we’ll destroy his career” comment quickly drew widespread criticism, the remark was only the coda of an equally unnerving conversation with the sheriffs that went largely unremarked upon.

A transcript of the full event reveals how little Trump seems to grasp civil forfeiture’s meaning. “So, in other words, they have a huge stash of drugs,” the President told the group, shortly before the exchange with Eavenson. “So, in the old days, you take it. Now we’re criticized if we take it.” The President appeared unaware of the distinction between contraband itself and the proceeds that may flow from it; no policymaker, to my knowledge, has ever contested cops’ right to seize drugs or other direct contraband, and forfeiture isn’t required—or even called upon—to do so. (Sean Spicer, the White House press secretary, did not respond to my request for clarification on the President’s official forfeiture stance, nor for comment on Trump’s broader remarks.) What makes civil forfeiture so legally unique is that a case can be brought directly against otherwise legal goods if they are deemed “fruit of the poisonous tree”—the proceeds of crime. In many states, the burden of proof for civil forfeiture is strikingly low, and the cost to contest a case is often high. At the White House, one Kentucky sheriff voiced frustration with Congress, where a push to amend the lack of due process in forfeiture laws has found some bipartisan support. The sheriff complained to the President that forfeiture’s opponents “make up stories.”

In 2013, I embarked on an in-depth investigation of civil asset forfeiture for this magazine. I travelled the country, documenting more than a hundred cases in which people’s property was seized on mere “suspicion” of wrongdoing, or through other arguably unconstitutional or unfair means. In Philadelphia, I met an elderly couple whose home of four decades was placed in forfeiture proceedings after the couple’s son was charged with selling sixty dollars’ worth of marijuana to a confidential informant on the porch. (That the house belonged to the parents apparently didn’t matter to the local district attorney’s office, which planned to seize it, auction it off, and keep the proceeds.) In Washington, D.C., I spent time with a janitor who’d lost her car after her son, who had borrowed it, got pulled over for a minor traffic infraction and then was charged for unlawful possession of a handgun. (To seek the right to have her Honda returned, the mother learned, she would have to pay a “penal sum” of a thousand and twenty dollars, or else the vehicle would be swiftly auctioned off, or reappropriated for use by police. A car, unlike a person, does not have a right to a lawyer.) And, most chillingly, I travelled to Sheriff Eavenson’s own state of Texas, where, in the small town of Tenaha, dozens of drivers—almost all of them black and Latino—had been pulled over by local authorities and stripped of their cash, jewelry, DVD players, cell phones, and other valuables. The deputy city marshal claimed that the goods were suspect, even absent evidence of contraband. In some cases, he cited the presence of junk-food wrappers and energy drinks in drivers’ vehicles as a sign of drug trafficking, and noted that drivers’ kids might be “decoys.”

One victim of the Tenaha scheme, a waitress named Jennifer Boatright, was pulled over while passing through the town with her boyfriend and two kids; they were en route, with cash, to buy a used car. Authorities told Boatright that a large sum of cash was surely criminal, and that if she didn’t sign it over to the local district attorney, they’d confiscate her kids and charge her with money laundering. “Where are we?” Boatright recalled thinking, when I interviewed her in 2013. “Is this some kind of foreign country, where they’re selling people’s kids off?”

But the legal landscape has shifted since then. Most notably, a small but growing group of Republican and Democratic lawmakers, at both the state and federal levels, have come together to insist on forfeiture reforms that aid due process. At this week’s roundtable, Trump expressed dismay that civil forfeiture had grown “political,” and claimed that the only individuals who could possibly want reforms were “bad people.” It was unclear if he recognized how much of America he’d just condemned: according to a study by the Cato Institute, eighty-four per cent of U.S. residents oppose the use of civil forfeiture. Coverage of the once obscure practice has become commonplace. In 2014, the Washington Post did its own investigation, which, among other things, documented how hundreds of police departments and task forces now rely on seized assets for twenty per cent or more of their annual budgets.

The issue, remarkably, has become a steppingstone for bipartisan criminal-justice-reform collaborations in nearly every corner of the country. According to the Institute for Justice, some twenty states have enacted forfeiture reforms since 2014, including Florida, California, and New Mexico. In Texas, two state Senators—a Republican named Konni Burton, and a Democrat named Juan (Chuy) Hinojosa—have championed far-reaching forfeiture reforms that were the apparent target of Sheriff Eavenson’s comments to Trump. (One suggested change would require a criminal conviction before a person’s property can be seized.)

But here’s the most urgent question that Trump’s meeting with the sheriffs raised: How much power does the President actually have to “destroy” criminal-justice reformers? Does the White House have the capacity to thwart not just forfeiture fixes but also, more broadly, the emergent bipartisan push for a system-wide overhaul? Unlikely partnerships to address asset-forfeiture abuses have, in recent years, lent strength to a much larger cross-party push: to roll back mandatory minimum sentences; to address the injustices of the money-bail system; to curb soaring rates of criminal-justice debt; and to address other drivers of mass incarceration, many of which trace back to profiteering. What will become of these movements, under Trump?

On the campaign trail, Trump offered a criminal-justice platform ripped from the nineteen-eighties. Since entering the White House, Trump’s flurry of actions—the refugee ban, the botched Yemen raid, a Supreme Court nominee—have limited press scrutiny of his criminal-justice agenda. But, this week, the country finally got a glimpse of what lies ahead. On Wednesday, a day after Trump had the sheriffs to the White House, Jeff Sessions, a major proponent of civil forfeiture and other controversial drug-war tactics, was confirmed by the Senate as Attorney General. And, on Thursday, Trump signed three new executive orders on crime, confirming that an old-school law-and-order approach will prevail in his White House. The domestic battle over the future of criminal-justice reform has officially commenced.

Here, then, is a comfort: Presidents have never controlled all the critical levers of American justice, or injustice. The current push to end mass incarceration and to uphold due process emerged largely from cities, counties, towns, and municipalities. Its progress has been aided, at times, by state lawmakers, and, at last, by Congress and the courts. Families who’ve borne the brunt of the system have proved crucial to raising the issue’s visibility and making the case for action.

In 2014, California passed a ballot measure known as Proposition 47, which reclassified a range of felonies as misdemeanors and invoked the voices of crime victims to prioritize drug treatment over incarceration. In Ferguson, Missouri, community advocates and civil-rights litigators challenged profiteering laws around criminal-justice fees and fines. And in Oklahoma, in November, voters who resoundingly backed Trump also approved Republican-backed ballot initiatives to reduce the state’s prison population. These calls for change unfolding around the country are the strongest rebuke to a threat-making President. What frustrates many about the country’s justice system—its patchwork nature, which resists sweeping, cohesive fixes to its many flaws—may now prove an unexpected grace. Already, reformers in both parties have echoed Texas State Senator Konni Burton, an apparent target of Trump’s threat this week, who issued a statement in response to the news: “I will not be discouraged,” she wrote, “or deterred.”

Friday, February 10, 2017

RIP, Billy Wayne Cope

by Steve Drizin, Director of the Center on Wrongful Convictions and Youth, Northwestern University, Chicago, Illinois - February 10, 2016.

People sometimes ask me -- which is the worst miscarriage of justice you have been a part of? Without hesitation -- and I've seen more injustice as a lawyer in my lifetime than anyone should have to see -- I say: "Nothing compares to what the State of South Carolina -- York County prosecutors, a trial court judge, a jury, and a bevy of appellate court judges and state Supreme Court judges -- did to my client Billy Wayne Cope." 

Billy Wayne Cope died today at the age of 53. His legal team -- which has more than tripled in size since James Morton, Michael Smith and Phil Baity represented him at trial, released the following statement:

"In the years we represented Billy, he was unfailingly polite, optimistic, and full of faith, and he maintained these qualities in the long years that followed his conviction. Our inability to save him from this fate is one of the deepest disappointments of our lives and careers.

Billy’s death marks a sad end to a horrible miscarriage of justice. Billy confessed to a dreadful crime he did not commit. When DNA later proved the actual killer was a career burglar and serial rapist named James Sanders, who had just been released from prison in North Carolina, law enforcement should have faced up to the truth and admitted they obtained a false confession from the grieving and psychologically vulnerable father of a murdered child. Instead, the prosecution concocted a fantastic new theory that Billy must have cooperated with Sanders -- a man he never met -- in raping and murdering his own daughter in his own home. The State, then, succeeded in convicting both, the real killer and Billy, of a crime only one person actually committed. Billy Cope lost everything -- the last 15 years of his life, his family, and now any chance that this legal atrocity will ever be set right. This is a dark day for justice in South Carolina."

I've been fortunate in my line of work to experience the great joy of walking innocent clients out of prison and back into the arms of their loved ones. In fact, less than 24 hours before learning of Billy's death, I was on Cloud 9 after learning that the Cook County State's Attorney's Office had agreed to drop charges against my client (and three other Chicago teens who falsely confessed to a double murder in 1995). If you do this work long enough, you learn a sobering lesson. The wins are wonderful. You never forget them. But it's the losses, especially the cases of Unrequited Innocence, that will haunt you until your dying days. RIP BWC.

Thursday, February 09, 2017

Innocence Project director calls for higher ethical standard in court system

The following article written by Taylor W. Anderson was published in the Salt Lake Tribune on February 9, 2017.

Nearly 350 innocent people spent an average of 14 years in prison before the Innocence Project helped set them free. Barry Scheck has some ideas on how to keep more people from needing his group's help.

Moving toward DNA evidence instead of other forensic evidence that can be flawed can help keep innocent people out of prison, said Scheck, director of the group that works to identify and free wrongfully convicted prisoners.

But if everyone involved in the criminal justice system was held to high ethical standards through rules and laws, the system would be more sound, Scheck said in his Tanner Lecture on Human Values at the University of Utah's S.J. Quinney College of Law.

"Good people," he said, "do bad things." 

That can include any player in the criminal justice system, Scheck said as he spoke to an audience that included law students and defense attorneys, as well as Salt Lake County District Attorney Sim Gill and U.S. District Court Judge Robert Shelby.

He also pointed to the center of Moot Courtroom, where Brandon Moon, a Utah man who was convicted of three counts of rape in Texas, sat.

Moon served 17 years of a 75-year prison sentence — much of it fighting his conviction — before he was exonerated by DNA evidence with the help of the Innocence Project.

"I think that the biggest problem that we have is ethics," Moon told The Salt Lake Tribune after the speech. When we're willing to bend the rules a little bit to get a conviction, instead of looking for the truth, always looking for the truth."

Eyewitness misidentification and unvalidated or improper forensic science contributed to Moon's wrongful conviction, which he said routinely occurs across the country.

The Innocence Project, Scheck said, is also working to increase the use of videotaped interrogations, prevent the use of informants who have an incentive to provide testimony against a suspect, and ensure that suspects receive adequate attorney representation.

He told of a case in Texas, where Michael Morton spent 24 years in prison for his wife's slaying before he was exonerated in 2011 by DNA that identified the true killer. 

Defense attorneys had asked the judge in the case to look through the investigative report for potential evidence that could have prevented Morton's conviction. The judge looked and found none. 

After Morton was exonerated, the Innocence Project received the report through a public records request and found that evidence that could have helped Morton during his trial wasn't included in the file given to the judge. A court later found probable cause that the former prosecutor concealed evidence during the trial.

The Innocence Project, Scheck said, has worked to enforce rules for attorneys, on both sides of a case, that require prosecutors to hand over evidence that could be helpful to a suspect standing trial.

"It could happen to anybody," Scheck said of a wrongful conviction. "That's really the truth."

Saturday, December 31, 2016

Editorial: New York State continues its shameful refusal to act against wrongful convictions

The following editorial was published by The Buffalo News on December 30, 2016.

Nearly 10 years after two Buffalo residents were exonerated of crimes they did not commit, but for which they served decades in prison, New York State lawmakers remain indifferent to the problem of wrongful conviction.

It’s a dereliction of duty and a moral crime against the people of the state, those who remain wrongfully imprisoned and those other innocents who will be incarcerated because of the state’s willful inaction.

Anthony Capozzi served almost 22 years in prison for rapes he did not commit. He was utterly and completely innocent. While he and his family suffered all those years, the actual rapist, Altemio Sanchez, graduated to murder. It’s what can happen when the law gets it wrong and lawmakers don’t act.

Lynn DeJac spent more than 13 years in prison after being convicted of murdering her daughter, Crystallyn Girard, 13.

DeJac’s boyfriend at the time of the death, Dennis Donohue, was initially a suspect but later testified against her. DeJac was exonerated when DNA on the victim’s body was found to be from Donohue. After DeJac was exonerated, Donohue was convicted of murdering Joan Giambra in 1993, only seven months after the death of Crystallyn.

DeJac – released from prison in 2007 and exonerated in 2008 – died of cancer in 2014.

They were two of many. The National Registry of Exonerations lists over 200 people exonerated in New York alone. That’s more than 10 percent of the 1,945 shown to have been innocent nationwide. (The registry is a project of the University of California, Irvine Newkirk Center for Science and Society, the University of Michigan Law School and Michigan State University College of Law.)

One of those recently exonerated is a Town of Tonawanda native, just released after spending 21 years in a Texas prison for a sexual assault he did not commit. Brian E. Franklin had been a police officer in Fort Worth, but in 1995, he was convicted of criminal sexual assault of a child and sentenced to 30 years in prison, based on a false accusation by the alleged victim.

Since then, Texas has acted to change procedures that can lead to wrongful conviction. Although it can do more, it has already done more than New York.

It’s important to note that these aren’t people who were freed because of a legal technicality or because they somehow beat the system. To the contrary, the system beat them. It ground them up. These were innocent people.

Perhaps most infamous of the New York cases is that of the Central Park Five, teenagers wrongfully convicted of raping a jogger and leaving her in a coma. They, too, were innocent.

The five young men were convicted based on false confessions. They were kept from their parents, threatened and misled until police got what they wanted.

False confession is a strange phenomenon, but it’s one of the most common causes of wrongful conviction. It is often associated with drug addiction, mental illness and other factors allowing suspects to be easily manipulated. And to that point: A prison inmate later confessed to the assault on the jogger, and his DNA left at the crime scene clinched it. In 2014, New York City paid $41 million to settle a lawsuit filed by the wrongfully convicted men.

The other most common cause of wrongful conviction is witness misidentification. That’s what happened to Capozzi who, at the time of the crimes, bore an unfortunate resemblance to Sanchez. Still, he was significantly heavier than the description offered by the victims and bore a scar that none of them reported. The system beat him.

There are ways to fix these issues, but New York legislators can’t bring themselves to act on them, any more than they can on the state’s own chronic corruption. But other states have responded and, in doing so, have strengthened law enforcement.

Changes in lineup procedures have been shown to diminish the chances of misidentification. Video recordings of interrogations limit the chances of false confession, which can even be obtained unintentionally. These are both doable actions. They aren’t impossible and they don’t unduly burden law enforcement agencies. They serve the public, as the families of the women Sanchez murdered while Capozzi sat in jail might readily agree.

Two years ago, the Legislature seemed prepared to act, having finally won the support of the state’s prosecutors. But it didn’t act, in effect deciding that it was better to risk sending more innocent people to prison.

This needs to be high on the Legislature’s agenda in 2017, especially that of the Senate, which has been especially recalcitrant. There, Sen. Patrick Gallivan, R-Elma, a former Erie County sheriff and chairman of the Committee on Crime Victims, Crime and Corrections, can make a lasting difference by helping his colleagues see that the issues are critical, resolvable and, ultimately, make for better law enforcement.

No solution will be perfect. Reliable and well-considered systems can restrain the influences of human fallibility, not eliminate them. But it can do that much, diminishing the chances that innocent people will forfeit years of their lives and that others will be murdered while criminals continue to roam the streets.

Tuesday, December 06, 2016

It's time to exonerate Ethel Rosenberg

The following opinion was published by the Daily Hampshire Gazette on December 5, 2016.

Sixty-three years ago, Robert and Michael Meeropol made their first trip to the White House seeking to save their parents, Julius and Ethel Rosenberg, from execution as Communist spies.

The boys, then ages 6 and 10, are seen in a photo standing at a gate in front of the White House on June 14, 1953, attempting to hand-deliver a letter to then-president Dwight D. Eisenhower in which Michael wrote: “Please let my mommy and daddy go and not let anything happen to them.” The plea failed and the Rosenbergs were executed on June 19, 1953.

Last Thursday, the brothers reenacted their visit to the White House, this time seeking a proclamation from President Barack Obama exonerating their mother by declaring that she was not a spy for the Soviet Union and that she was unjustly convicted and executed. Michael, 73, who lives in New York, and Robert, 69, of Easthampton, have spent some four decades trying to clear their mother’s name.

It is past time for the U.S. government to acknowledge this grievous wrong that was committed during the “Red Scare” of the 1950s. While many people were victimized by the anti-Communist hysteria fueled by demagogues such as U.S. Sen. Joseph McCarthy, Ethel Rosenberg, who was a Communist, stands atop the list because she paid with her life after being accused with her husband Julius of committing the “crime of the century” by passing secrets about the atomic bomb to the Soviets.

 By issuing the proclamation, Obama would make a powerful, cautionary statement not only about the the Cold War-era of the 1950s, but also about fears stoked by the anti-Muslim rhetoric of president-elect Donald Trump. That message should be to reject guilt by association and sweeping generalizations – whether it be labeling all Communists as un-American 60 years ago, or all Muslims as terrorists today.

The documents available today show that Julius Rosenberg was part of one of several spy rings run by the Soviet Union in the United States after World War II, although the nature of the information he passed on during his espionage is disputed. His sons maintain that he did not give up secrets about the atomic bomb.

The Rosenbergs were convicted largely as the result of testimony by Ethel’s brother Army Sgt. David Greenglass, who worked as a machinist at the Los Alamos, New Mexico, headquarters of the Manhattan Project to build the atomic bomb. Greenglass and his wife Ruth testified during Ethel Rosenberg’s trial that she had been present at two meetings in 1945 with her husband and the Greenglasses. According to the Greenglasses’ testimony, at one of those meetings David gave Julius a sketch of the atomic bomb, while Ethel typed notes.

However, David Greenglass, who  was indicted as a co-conspirator and sentenced to 10 years in prison, gave different testimony to a grand jury before the trial. Documents released in 2015, a year after his death, had no mention in his grand jury testimony of Ethel Rosenberg’s presence at either meeting. Instead, Greenglass told the grand jury: “I never spoke to my sister about this at all.”

The Meeropol brothers contend that Greenglass fabricated his testimony at Ethel Rosenberg’s trial after reaching a deal with prosecutors to reduce his sentence.

In addition to delivering documents supporting their case to the White House last week, the Meeropols have an online petition ( seeking exoneration for Ethel Rosenberg. As of Monday afternoon, it had been signed by 44,336 people.

In an accompanying statement, the Meeropols write that “our parents’ execution helped fuel a dangerous climate of fear and intolerance in our country which permitted political opportunists like Senator Joseph McCarthy to poison our society. Today we face a similar climate of hatred which targets immigrants, Muslims, LGBTQI individuals and others.”

Congressman James P. McGovern of Worcester last week wrote a letter to Obama urging him to issue a proclamation acknowledging the politically motivated injustice in Ethel Rosenberg’s execution. “By so doing, you can send a clear message to the American people that our government’s actions must be just, humane and accountable,” McGovern told the president.

That would be fitting as one of Obama’s final acts before he leaves office in January.

Tuesday, November 22, 2016

Guilty until proven innocent, in Colorado

The following opinion by David Post was published by the Washington Post on November 21, 2016.

The Supreme Court will hear arguments this term in Nelson v. Colorado, a case raising some interesting and important questions about the scope and meaning of the “presumption of innocence.”

Shannon Nelson was convicted in 2006 of five sexual assault offenses she allegedly committed against her children. In addition to a prison term, Nelson’s sentence included several monetary charges that state law imposes on defendants who are convicted of crimes, including (1) a $125 fee designated for Colorado’s Crime Victim Compensation Fund; (2) a $162.50 “surcharge” designated for Colorado’s Victims and Witnesses Assistance and Law Enforcement Fund; (3) a “docket fee” of $35; (4) a “time payment fee” of $25; and (5) restitution amounting to $7,845, for a total of $8,192.50.

Because she was unable to pay, the Colorado Department of Corrections began deducting money from her inmate account while she was incarcerated to satisfy the debt she owed to the state.

Nelson’s convictions were reversed on appeal, and on retrial she was acquitted of all charges. She then filed a motion with the trial court, seeking a return of the money — $702.10 — that had been transferred from her prison account to the state pursuant to the now-vacated conviction.

The Colorado Supreme Court, over a stinging dissent by Justice William Hood, held that the trial court did not have the authority to order the state to refund Nelson’s money and that in order to obtain that refund, Nelson would have to file a separate civil action under Colorado’s Exoneration Act. That statute, enacted in 2013, authorizes an award of compensation (up to $70,000 per year of incarceration) to those who have been wrongfully incarcerated; additionally, it provides for a refund of fees and costs paid to the state.

But individuals seeking such compensation and/or refund must prove, by “clear and convincing evidence,” that they were “actually innocent” of the crime with which they were charged – not merely that they were “legally innocent” by virtue of never having been (validly) convicted, but innocent in fact.

In other words, Nelson will not be “presumed innocent” in the Exoneration Act proceeding; to get her money back — money that the state acknowledges it would have had no claim on but for the now-vacated criminal conviction — she will have the burden of persuading the court that she was, in fact, innocent of the crimes charged.

It hardly seems fair.  You’ve seen it a thousand times on TV, the guy who’s been released from jail who picks up, on his way out the door, all the stuff he had to turn over to the cops when he was taken into custody — keys, phone, loose change, wristwatch … It’s as though Colorado were to say: “We’re not going to give you your stuff back unless you go to court and prove – by clear and convincing evidence, no less! – that you’re actually innocent of the crime we thought you had committed.”

An amicus brief submitted by the Institute for Justice and the Cato Institute (that I helped write, and for which I’m counsel of record) argues that not only is it not fair, it violates fundamental due-process principles to reverse the presumption of innocence in this way.

There may well be no principle of law more familiar to most people — if only from the uncountably large number of TV shows and movies that have repeated the formulation — than the notion that a criminal defendant is “presumed innocent” of all charges, and that the government has the burden of proving guilt by proof “beyond a reasonable doubt.” And indeed, the Supreme Court has held (see Coffin v U.S., 156 U.S. 432 (1895)  and In re Winship, 397 U.S. 358 (1970) ) that both parts of that formulation — that there is a “presumption of innocence” and that it can only be overcome by proof “beyond a reasonable doubt” — are incorporated into the due process clause of the Fifth Amendment, applicable to state proceedings through the 14th Amendment.

The tricky part about this case is that Colorado hasn’t reversed the presumption in a criminal proceeding; it is not proposing to force criminal defendants to prove their actual innocence to avoid a criminal conviction. That would be blatantly, and incontrovertibly, unconstitutional. Instead, it is placing the burden of persuasion on Nelson (and others in her position) in a civil proceeding — an Exoneration Act action for a refund of fees and costs.

Our brief makes the argument, though, that due process requires that the state apply the presumption of innocence even in the civil action authorized by the Exoneration Act, at least with respect to persons who, like Nelson, are not seeking some special benefit from the state (i.e., compensation for the time they wrongfully served), but who are, rather, just seeking to get back money that is rightfully theirs.

As we point out, the “presumption of innocence” has extraordinarily deep roots in Anglo-American — indeed, in Western — jurisprudence, traceable as far back as the Book of Deuteronomy (“one witness is not enough to convict anyone accused of any crime”) and the law of ancient Rome (in the maxim “de quolibet homine presumitur quod sit bonus homo donec probetur in contrarium,” or “each person may be presumed to be a good man, until the contrary is proved”).

In some ways, it’s a tricky legal construct, starting with the idea that it’s not a true “presumption” at all.  A true presumption is a rule of evidence, requiring the fact-finder to accept that Fact B (the presumed fact) has been established, either conclusively or until contrary evidence is produced, once Fact A (the basic fact) has been proven.  A true presumption has a basis in fact; we mandate that the inference be drawn, because it is more likely to be true than not. A child born of a husband and wife living together is presumed to be the natural child of the husband. A person who has disappeared and not been heard from for seven years is presumed to be dead. A properly addressed letter delivered to the post office or a common carrier was in fact delivered and received by the addressee.

But the presumption of innocence doesn’t work this way.  It doesn’t mandate that the fact-finder draw any factual inferences at all.  It says nothing about whether the defendant is innocent in fact. It would be odd if it were otherwise; as anyone involved in the criminal-justice system will tell you, it is almost certainly the case that most criminal defendants, in fact, committed the acts on the basis of which they have been charged.

The presumption of innocence isn’t founded on any notion the defendants generally are factually free from blame. It’s a broader principle, rooted in policy, not statistical likelihood, that says that all people brought before a tribunal “are taken, prima facie, i.e., in the absence of evidence to the contrary, to be good, honest, and free from blame, presumed to do their duty in every situation in life, so that no one need go forward, whether in pleading or proof, to show as regards himself or another, that the fact is so, but every one shall have it presumed in his favor.”

It actually works as a kind of anti-presumption.  It forbids a fact-finder from inferring that the defendant did commit the acts charged from the fact that she has been arrested, arraigned, and indicted for a crime. It instructs fact-finders, as the Court put it in Taylor v. Kentucky, 436 U.S. 478 (1978), to “put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced [and] nothing but the evidence, i.e., no surmises based on the present situation of the accused.”

In an influential law review article published in 1895, the eminent evidence scholar James Bradley Thayer put it nicely thus:

    “It [the presumption of innocence] says simply this: ‘It is the right of this man to be convicted upon legal evidence applicable specifically to him. Start then with the assumption that he is innocent, and adhere to it till he is proved guilty. He is indeed under grave suspicion, and it is your duty to test and fairly to weigh all the evidence against him as well as for him. But he is not to suffer in your minds from these suspicions or this necessity of holding him confined and trying him; he is to be affected by nothing but such evidence as the law allows you to act upon. For the purposes of this trial you must take him to be an innocent man, unless and until the government establishes his guilt.’ The presumption of innocence reflects a long-standing societal judgment that ‘in the eyes of the law every man is honest and innocent unless it be proved legally to the contrary’.”

Shannon Nelson is legally innocent of any crimes.  Whether she is factually innocent of those crimes has not been determined and is irrelevant; in the eyes of the law, she is, like all of us, assumed to be “honest and innocent,” and Colorado can’t deprive her of her property until and until it proves otherwise (which is has not done).

* * * 

David G. Post taught intellectual property and Internet law at Temple and Georgetown Law Schools, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace (Oxford). He is currently is a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.

Monday, November 14, 2016

Facing death, Kevin Keith deserves a new trial

The following editorial was published by the Akron Beacon Journal on November 11, 2016.

Kevin Keith sat on death row for 16 years. Then, in 2010, Ted Strickland commuted his sentence to life in prison without the possibility of parole, rightly citing “too many real and unanswered questions” about whether Keith committed a triple murder at an apartment in Bucyrus. That was partial justice for Keith, once a defensive tackle at Canton-McKinley High School. He still needs a way to get back into court for a new trial in which the totality of the evidence would be examined.

Perhaps that opportunity now will come. The Columbus Dispatch recently reported on grave questions raised about the work of G. Michele Yezzo, a longtime forensic scientist at the state Bureau of Criminal Investigation. She retired in 2009 after more than three decades on the job. An examination of her personnel file has revealed years of erratic behavior, threatening and otherwise hostile, even a suspension in 1993.

Most troubling, the record points to concerns that Yezzo slanted her results and conclusions to favor the police and prosecution. The Dispatch noted she often conducted her analyses of murders and other high-profile felonies with little oversight.

Lee Fisher, a state attorney general in the 1990s, told the Dispatch he “would call for an investigation into every case where her findings and conclusions were instrumental in the final result,” citing “an obligation to the integrity of the criminal-justice system. … ”

Jim Petro, the attorney general a decade later and part of the current Kevin Keith defense, described Yezzo’s work to the Dispatch as “shoddy at best.” He added: “Any case where she provided forensic evidence that resulted in a conviction now comes into question.”

Mike DeWine, the current attorney general, told the Dispatch that his office has conducted two such reviews since learning about the problem in 2015. He reports the examinations turned up no issues.

That doesn’t seem to fit the Keith case. A key factor for the prosecution was the Yezzo analysis of a partial impression of a license plate number left in a snow bank by the alleged getaway car. In 2010, the Keith defense hired one of the nation’s leading forensic experts to review the analysis. He found the impression did not match the bumper of Keith’s car. He also concluded there wasn’t sufficient detail about the plate numbers.

Add these findings to the erosion of eyewitness testimony, plus credible information pointing to a likely alternative suspect, and the case against Keith weakens to the point of a wrongful conviction.

As the Dispatch reported, a judge in Huron County already has dismissed the 1993 murder conviction of a man due to the sloppy work of Yezzo.

Kevin Keith came within two weeks of execution. Imagine the horror if he had been put to death by the state and six years later all of this surfaced. That helps explain why Ohio lawmakers must enact the recommendations of the Supreme Court task force on the death penalty, especially those items designed to prevent wrongful convictions and execution. It also points to doing what is just, granting Keith a new trial.