Saturday, April 12, 2014

The death of the presumption of innocence: A dirty secret of the American judicial system is that juries are hardly fair and impartial

The following opinion by Andrew Cohen was published in The Week on April 10, 2014.

Imagine you are a defendant awaiting trial on criminal charges that could send you to prison for the rest of your life. You are sitting at the counsel table during voir dire, the process by which a jury is selected before a trial.

The prosecutor asks a potential juror: "You haven’t heard any evidence. How would you vote?" The potential juror responds: "I would have to vote guilty."

Your trial judge pipes up. He's supposed to ensure that you receive a fair trial and that the jurors who will sit in judgment upon you are neutral, objective, and willing to see and hear the evidence with an open mind. The judge asks the prospective juror: "Could you return a verdict of not guilty if the government doesn't prove its case beyond a reasonable doubt?" The would-be juror responds: "I don't think I would be able to."

The prosecutor — who wants this juror on the panel because he wants to convict you — presses on. He asks the juror: "Let's say the victim takes the stand [and] you flat-out don't believe her. In fact, you think she's lying. You look at her [and conclude], 'I don't believe a word coming out of her mouth.' Are you going to convict this man anyway?"

The potential juror responds: "That depends. I still feel he was at fault."

How would you feel if this juror were allowed to join the panel that determined your fate? Would you feel as though you had received a fair trial by an impartial panel, as the Sixth Amendment commands? Or would you feel that the trial judge had failed to protect your presumption of innocence?

My guess is you would feel cheated. I know I would. But yet this precise scenario unfolded in California in 2009. This juror was allowed to serve on this trial. And to date, no judge has declared it a violation of the defendant's constitutional rights.

Now, in this particular case, the defendant, Jose Felipe Velasco, was accused of an extremely heinous crime. He was an alleged serial child rapist who had gotten a 14-year-old girl pregnant after having some form of sex with her 21 times. But that should not change our minds about whether this man should be presumed innocent and be entitled to a fair trial. Indeed, this is precisely why we have constitutional rights in criminal cases — so that fairness and due process come even to the despised.

R. Scott Moxley, a veteran reporter and columnist for OC Weekly, brought this story to national prominence this week — and it's a remarkably ugly picture in every way. Not only were the charges awful, not only is this defendant as unsympathetic a figure as the criminal justice system churns out, but the way the case was handled was ignoble, too. Thousands of years' worth of the presumption of innocence shouldn't go out the window just because a defendant is accused of heinous crimes.

The potential juror in the case, known today only as Juror 112, was permitted to sit in judgment upon Velasco only after she promised — after extensive questioning by the prosecutor, and over the objection of defense attorneys — that she thought she could "try" to be fair to the defendant. This "promise" was good enough for the trial judge, a former prosecutor, as well as two federal judges who later reviewed the transcript to determine whether Velasco's Sixth Amendment rights had been violated.

What were these judges thinking? We'll never really know. Unlike Juror 112, the jurists did not volunteer any candid assessments of the situation. They did not fully explain how any reasonable person, reviewing the transcript of the jury selection process before Velasco's trial, could have come away from it believing that this juror was going to give the defendant the benefit of all reasonable doubts. It was enough, they said, that she pledged to "try."

The dirty secret here is that what happened in this case happens every day in courtrooms all over the country. Judges and lawyers are desperate to seat juries, while potential jurors are desperate to avoid jury duty or to put their stamp upon the proceedings. As a result, the business of selecting jurors occurs with a sort of wink and a nod. Jurors are asked to put aside whatever preconceived notions they have about a case — or about justice generally, or about the defendant in particular — and so long as they say they will do so they are allowed to join a panel that determines, in some cases, who lives and who dies, and who goes to prison for 123 years to life.

Sometimes, as we see here, the benefit inures to prosecutors. Velasco's prosecutor wanted this juror on the panel because he knew that she would vote to convict the defendant. And so he attempted to "rehabilitate" her in the eyes of the judge. Think about the metaphysical ramifications of that: we ask citizens, like this juror, to lie about their open-mindedness so that we may place them on juries where they then are charged with determining which witnesses are lying during their trial testimony.

But sometimes this fuzziness during voir dire helps the defendant. I will never forget Michael Tigar, the greatest trial lawyer I ever saw, save Oklahoma City bombing defendant Terry Nichols' life during jury selection when he convinced a juror who was opposed to the death penalty (and thus technically ineligible to sit on a capital jury) to keep an open mind about it. On and on the questioning went until she promised to do so. And then, guess what? She was likely one of the jurors who refused to recommend a death sentence for Timothy McVeigh's co-conspirator.

Why does it matter if a child rapist is judged by people who consider him guilty before they have seen any of the evidence against him? Because the presumption of innocence goes back thousands of years, to the Old Testament, to Greek and to Roman law, and to English common law, from which American law was born. Because the United States Supreme Court, 120 years ago in a case styled Coffin v. United States, decreed that "the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our current law."

That is still the law of this land. It has not since been overturned. There are no exceptions to that rule in cases of alleged murderers or child rapists. Judges and jurors don't get to decide when they will honor this rule and when they won't. The "rehabilitation" of jurors like Juror 112 may have sped up the pace of Velasco's trial but it created a result that violates the Constitution and is unworthy of any respect.

The lesson here isn't that Juror 112 should have just kept to herself her visceral prejudgment of the case. The lesson is that our justice system needs to react more justly when citizens like this are so candid in declaring their unworthiness to serve.

*  *  *
Andrew Cohen is a contributing editor at The Atlantic, a fellow at the Brennan Center for Justice, and a legal analyst for 60 Minutes and CBS Radio News. He has covered the law and justice beat since 1997 and was the 2012 winner of the American Bar Association's Silver Gavel Award for commentary.

Friday, March 28, 2014

Freedom For Ryan Ferguson Should Lead To The Release Of His Co-Defendant Charles Erickson

The following opinion by Bruce Fisher was published by GroundReport.com on March 26, 2014.

Columbia Tribune Sports Editor Kent Heitholt was brutally murdered on November 1, 2001, in Columbia, Missouri. Heitholt was attacked in the Tribune parking lot as he left work. His body was discovered next to his car. Heitholt had been struck from behind sustaining multiple head injuries and was strangled with his own belt. Fellow Tribune employee Michael Boyd was the last person to see Heitholt alive. Boyd claims that he met up with Heitholt briefly in the parking lot before driving away at around 2:20 AM. Police had no solid leads in the first 2 ½ years of the investigation.

In late 2003, Charles Erickson read an article published by the Columbia Tribune discussing the unsolved murder of Kent Heitholt. Unfortunately, Charles and his friends partied too hard that Halloween night, leaving Charles with no recollection of his actions at the time of the murder. It has been reported that party-goers, including Charles, were experimenting with Adderall, cocaine, and alcohol at a party that was broken up by police. Charles left that party and ended up catching a ride with Ryan Ferguson to the “By George” bar near the scene of the crime. When browsing through news reports, Charles feared that he resembled a composite sketch released by police. Knowing only that he was at a bar near the scene that night, caused him to worry that he might be involved.

Over a period of time, Charles began telling friends that he had a dream, leading him to think that he and Ryan Ferguson may have been involved in the murder. One of the friends that Charles spoke to called Crimestoppers with a tip and another friend would later call the police, leading Charles to find himself in an interrogation room trying to answer questions about a murder that he had nothing to do with.

At the time of his interrogation, Charles was very confused about the events that took place that night. When viewing his interrogation video, it is clear that Charles knows very little about the crime. The detectives spoon-feed Charles unreported details of the case, and pressure him into providing a false confession while implicating Ryan in the process.

Coming from a family with a history in law enforcement, Charles thought he could trust the police officers that were interrogating him. Unfortunately Charles was misled, causing him to plead guilty to the crime and provide false testimony against Ryan Ferguson in return for a reduced sentence. Ryan was wrongfully convicted in 2005, and sentenced to 40 years in prison.

Investigators used extremely poor judgment when making the decision to extract a false confession out of a young man that was in no position to give a proper statement. Charles must not be held accountable for the egregious misconduct of the police investigating the Heitholt murder. Charles must not continue to be punished for a murder he did not commit. The Heitholt family deserves justice. The continued incarceration of Charles Erickson brings no justice and no real closure for the family of the victim.

When given the opportunity, Charles recanted his statements implicating him and Ryan Ferguson, and he has done everything in his power to help set the record straight, not only for Ryan, but also for the Heitholt family.

Thankfully, Ryan Ferguson was finally freed on November 12, 2013, after serving nearly ten years in prison. Charles Erickson remains wrongfully convicted, and is currently serving a 25 year prison sentence.

Ryan Ferguson’s attorney Kathleen Zellner recently filed a civil rights lawsuit seeking $100 million in damages for the wrongful conviction of her client. Zellner’s 50 page report details the egregious police misconduct that resulted in two innocent people being wrongfully convicted.

It is now blatantly obvious that Charles Erickson had absolutely nothing to do with the murder of Kent Heitholt. Proving Ryan Ferguson’s innocence also proves Charles’s innocence. Anyone that supports Ryan Ferguson, based on the facts of this case, should support the release of Charles Erickson.

This case continues to highlight the terribly flawed Missouri justice system. It is time for the nonsense to end. It is time to free Charles Erickson.

Charles Erickson is now being represented by Attorney Laura O’Sullivan, a professor at University of Missouri – Kansas City School of Law, and Senior Counsel with the Midwest Innocence Project. O’Sullivan voiced strong support for her client shortly after Ryan Ferguson’s release:

“Charles Erickson is relieved and overjoyed that Ryan Ferguson was released. Charles Erickson is a victim of the system. I will fight diligently and relentlessly for his release. Fifty percent justice is not enough, half the story won’t do. We need to finish the job of finding justice, justice for Charles Erickson, and ultimately, the Heitholt family”

A 48 Hours segment on the case, including an interview of Charles with Erin Moriarty is scheduled for March 29, 2014. Please be sure to check your local listings.

A new website has been created by Injustice Anywhere to help bring more attention to the Charles Erickson case. Please visit FreeCharlesErickson.org to learn more about this case.

You can also keep up to date with current events on the Free Charles Erickson Facebook page.

Thursday, March 20, 2014

Fast Track Executions?

The following opinion by K.C. Cole was published by the Los Angeles Times on March 18, 2014.

What's wrong with this picture?

Exonerations of wrongly convicted prisoners are at an all-time high. Last month, the governor of Washington put executions on hold because, since 1981, when the state last updated its capital punishment laws, a majority of the 32 death sentences that were imposed were overturned. More than a dozen other states have also called a halt to executions, for various reasons.

And yet, three former California governors — George Deukmejian, Pete Wilson and Gray Davis — are urging the state to speed up a clearly flawed process of deciding who's to die. Their approach could theoretically limit the state appeals process, which now generally takes 12 to 15 years, to five years.

It may be easy for most people — even former governors — to ignore or dismiss these injustices. Many of the wrongly convicted are poor black men, invisible to the majority of Americans. Too many of us buy into what's on TV detective shows: irrefutable scientific tools that identify the guilty beyond a shadow of a doubt. Plus, nobody wants to admit that blameless people have died at the hands of the state. Humans will do almost anything to preserve their self-regard, including avoiding the implications of exonerations, every one of which, as social psychologist Carol Tavris says, "is stark, humiliating evidence of how wrong you are."

The facts should send chills up anyone's spine.

Take eyewitness testimony. According to the Innocence Project, which uses DNA evidence to challenge wrongful convictions, eyewitness misidentification is the culprit in more than 70% of the cases. 

Researchers have pinpointed the way misidentifications increase dramatically across class, age and racial lines. A recent Stanford study found that an interviewer's perception of whether subjects were white or black changed depending on such circumstances as where the subjects lived and whether they had been imprisoned.

Memory, an obvious aspect of eyewitness evidence, is just as insidious. "I remember what I saw" is a misleading illusion. And despite what instinct tells you, those who tell very detailed and consistent stories are more likely to be liars than those who are uncertain or self-contradictory.

Memory is malleable. It can be easily "primed" or implanted, when statements are heard again and again. As Nobel laureate in economics Daniel Kahneman points out, "familiarity is not easily distinguishable from truth." That phenomenon may explain why innocent people confess, usually after hours of persuasive talk from prosecutors. Up to a fifth of those later found to be innocent confessed to the crime.

Popular television crime shows suggest that misperceptions and flawed memories don't matter because "scientific" evidence trumps all. In truth, what witnesses see and hear and experience is still often the only evidence presented. Worse, "scientific" evidence isn't necessarily reliable or even scientific.

A single fingerprint can land you in jail, and yet the notion that everyone possesses a unique set of prints has not been proved beyond a doubt. Though certainly useful, fingerprints are not the fail-safe method of establishing identity that has been sold to courts and the public. Ballistics, hair sampling, matching teeth marks — all seemingly solid evidence — are potentially unsound. Texas has just decided to review convictions based on microscopic hair analysis, a forensic tool that DNA analysis has showed to be iffy at best. At least one Texas inmate, Claude Jones, was found guilty and executed in 2000 primarily because of microscopic hair analysis that was later proved wrong.

Even the gold standard of evidence — DNA — is only as good as the lab handling it. It can offer a billion to 1 or more probability that the suspect was at least present at a crime scene. But DNA samples are often small or degraded or simply misidentified. It's sobering to note, as the National Research Council did in a report in 2009, that only 60% of publicly financed crime labs even employed a certified examiner.

All forensic evidence is only as strong as its weakest link. Whether the lab is analyzing bones, hair or genetic material, an error rate of 1 in 100 could translate into many thousands of wrongly convicted people. The good news is that the reliability of all this evidence can be improved.

The Justice Department and the National Institute of Standards and Technology this year created panels of scientists and legal experts to finally set federal standards for forensic science and training practices. Eyewitness identification is more reliable if the officer conducting a lineup doesn't know who the suspect is, or if witnesses see the potential suspects separately rather than all at once. The forces behind false confessions become all too clear when interrogation sessions are taped. More research and more oversight are crucial.

Yes, the U.S. justice system ranks as one of the fairest in the world. But that doesn't exonerate it from the terrible mistakes it has made.

There's no doubt that many of the prisoners now on death row in California have committed unspeakable crimes. But if exoneration rates tell us anything, it's that some could well be innocent — the victims of bad science, wrong testimony and citizens who find it too easy to look the other way. Justice will never be perfect, but until the state acknowledges the gaps in the process and institutes reforms, it shouldn't be in a hurry to speed up the pace of executions.

K.C. Cole is a journalism professor at USC and a former science writer for The Times.

Thursday, March 06, 2014

New evidence of wrongful conviction

San Antonio Express News Editorial published March 6, 2014

SAN ANTONIO — Attorneys and judges have long lectured us about the difference between not guilty and innocent. A not guilty verdict simply means the prosecution was not able to produce enough evidence to convince a jury beyond a reasonable doubt.

There is now new evidence of innocence and wrongful execution in the case of Cameron Todd Willingham, executed in 2004 in the arson deaths of his three daughters.

But if that “innocence” label bothers Gov. Rick Perry in weighing a posthumous pardon, he can still justifiably conclude that a “not guilty” verdict certainly should have occurred.

There exists plenty of compelling evidence that, had facts now known been known by the jury, there would have been such a verdict.

And had these facts been properly weighed or available, Willingham's execution would have been stayed. There might have been a new trial.

Even without weighing Willingham's “innocence,” Perry can clearly see justice too-flawed to warrant conviction, much less execution. This is the standard. And the new evidence just makes a stronger case that justice fell way short here.

A newly uncovered notation on a district attorney file strongly suggests that the jailhouse informant who testified that Willingham confessed to him had been given a deal from Navarro County DA John Jackson, now a district court judge.

The informant, Johnny Webb, told the court that he had received no deal. And Jackson has said none existed.

The notation was uncovered by the Innocence Project, which has petitioned the Texas Board of Pardons and Paroles for a posthumous pardon for Willingham. The project requested and got DA files connected to the case.

The notation — unsigned — was on the cover of the DA file on Webb's robbery charges. It read that the first-degree charge he had been convicted on should be reclassified to second degree “based on coop in Willingham.” Other documents show Jackson making attempts to get Webb an early release.

This is important because a claim in this case is that even if the arson evidence had not, even before Willingham's execution, been so thoroughly discredited, there was Webb's testimony.

Webb later recanted but Willingham's attorney was apparently never told of this, according to the Innocence Project.

In sum: Arson evidence so outdated it was useless in concluding guilt. Expert testimony to this effect before Willingham's execution.

And now the notation indicating the remaining evidence viewed as damning was secured with a promise of favorable treatment.

It's difficult to fathom an innocent reason for the notation on Webb's file. Favorable treatment, unpromised, but coming after the fact “based on coop in Willingham”? At the very least, this points to a wink-wink deal ensuring plausible deniability.

Perry's been here before. The Innocence Project asked the newly formed Texas Forensic Science Commission to investigative Willingham's case and another case as well.

Expert witnesses said fire investigators' testimony on the arson evidence in Willingham's case was seriously outdated.

But the commission, after Perry ousted some members, was ultimately barred by an opinion from Attorney General Greg Abbott from making a finding of negligence, though the investigation sparked a re-examination of how arson evidence is gathered and weighed. And it was a topic briefly in Perry's ill-fated presidential bid.

There is clear evidence in the Willingham case of the kind of flawed justice for which Texas, unfortunately, has become known. We understand the reluctance of death penalty advocates to give ground that points to an innocent person executed.

And, yes, Perry is the governor under whose watch Willingham was executed.

But the evidence is well beyond overwhelming, if not to innocence, at least to seriously miscarried justice and to a “not guilty” verdict if all facts were presented.

Governor, you can't bring back Willingham. You can, however, do as much as is now possible to right a wrong. Ultimately, this decision is yours. For belated mercy's sake, issue the posthumous pardon.

Monday, January 27, 2014

The wrongful conviction of Gerald O’Donnell

The following opinion by David Cameron was published on January 18, 2014 by the New Hampshire Register.

On Wednesday (January 15, 2014), Gerald O’Donnell was sentenced to four years in prison for bribing and tampering with Doreen Stiles, the key witness in the 1995 trial of George Gould and Ronald Taylor for the 1993 murder of Eugenio Vega in New Haven. O’Donnell worked as a private investigator for Gould and Taylor’s lawyers prior to their 2009 habeas trial.

There was no evidence linking Gould and Taylor to the murder — no fingerprints, DNA, hair fibers, weapon, eyewitnesses. There was only Stiles’ testimony. Stiles, a drug-addicted prostitute, testified that as she walked toward Vega’s store on Grand Avenue in the early morning of July 4, 1993, she saw a large black man cross the street heading toward the store. Hiding in an alleyway next to it, she heard voices arguing, a demand to open the safe, screams in Spanish and a gunshot, and saw two men leave the store. Later, she identified photos of Gould and Taylor as the men she saw. The men were convicted and sentenced to 80 years.

Eleven years later, O’Donnell, working as an investigator for Gould and Taylor’s habeas lawyers, tracked down Stiles in early December 2006 in a nursing home. In their first conversation, she told him she wasn’t near Vega’s store that morning, had not seen the men, and had made up the account over the course of a six-hour interrogation during which she experienced withdrawal symptoms, was threatened with arrest for prostitution, and was offered money to buy drugs. He immediately provided the state’s attorney’s office with a tape and transcription of the interview.

Five months later, while visiting Stiles, O’Donnell noticed that she and two other women were listening to a television that had no picture. He went to a Walmart and bought them a cheap television. Over the next couple of years, he would drop in on her from time to time and sometimes bring her a pizza or give her a small amount of cash.

At Gould and Taylor’s 2009 habeas hearing, Stiles reiterated what she told O’Donnell in their first meeting — that she wasn’t in the vicinity of the store that morning and made up the whole story during a six-hour interrogation in which she was threatened with being charged with prostitution, was “dope sick,” and was offered help in buying heroin. Persuaded by her recantation, Judge Stanley T. Fuger Jr. threw out the convictions and released the men.

The state appealed and in July 2011, the Connecticut Supreme Court reversed Fuger and remanded the case to the habeas court for a new trial, claiming — bizarrely — that, despite the absence of any other evidence that implicated the men, Stiles not being at the scene of the crime didn’t prove they were innocent.

Soon thereafter, Stiles was visited by two state inspectors, both former New Haven police officers. What they said is not known. They may have informed her that she would be subpoenaed to testify at the new habeas trial. They may have mentioned that in 2010 the state had removed the five-year statute of limitations for perjury, meaning she could be charged with perjury for her original trial testimony if she repeated her 2009 recantation at the new trial.

Whatever they said, her response led them to ask if she would speak with the New Haven police and to contact a New Haven detective and suggest that he speak with her. The detective did so in a videotaped interview in which Stiles attributed her 2009 recantation to O’Donnell and his offer of clothes and money and purchase of pizza, a television and a stereo. It was that videotaped statement that provided the basis for the bribery and tampering charge.

At Gould’s 2012 habeas trial — Taylor died in October 2011 — Stiles, acting upon the advice of her attorney, invoked the Fifth Amendment and refused to testify. She did so because, without immunity, whatever she said — whether she repeated the account she told at the original trial or her 2009 recantation — would have exposed her to a charge of perjury.

So at O’Donnell’s trial last fall, the state granted her immunity, thinking that if she was protected from prosecution for any previous false testimony she would repeat what she said in the July 2011 interview. Instead, she repeated her 2009 recantation, saying once again that she was not near Vega’s store that morning and did not see the men at the store.

Explaining her original testimony, she said she was a drug addict at the time, was going through withdrawal, and the officers interrogating her offered to assist her in buying drugs. “They bought drugs for me, bought me clothes. It made it easy for me to go on with the lie.” While acknowledging that O’Donnell bought her a television and gave her some money, she denied his gifts had anything to do with her recantation; when asked why she recanted, she said, “I had a chance to make right what I did wrong then.”

In convicting O’Donnell, the jury ignored Stiles’ sworn testimony and chose to believe instead what she said in the 2011 videotaped interview, despite the fact that the circumstances that prompted that interview are not known and the fact that at various points in the interview Stiles acknowledged that some of her original trial testimony was false and that some of what she said in the interview itself was false.

O’Donnell compiled an impeccable record as a police officer in Cheshire and later as an inspector in the New Haven state’s attorney’s office. He did not bribe and tamper with Stiles; her recantation occurred long before he bought her a TV and gave her pizza and small amounts of money when he visited.

In prosecuting O’Donnell on the basis of Stiles’ unreliable comments in the 2011 videotaped interview, Tolland State’s Attorney Matthew C. Gedansky abused the powers of his office. O’Donnell’s conviction was, as Judge Fuger said of Gould and Taylor’s, a “manifest injustice.” And his sentence, by Judge James T. Graham, was excessive, indeed so excessive as to be gratuitously cruel.

David R. Cameron is a professor of political science at Yale and a member of the state’s Eyewitness Identification Task Force.

Sunday, January 26, 2014

Too many questionable guilty pleas

Emily Sasso is a freshman at Columbia University. Her father, Tampa lawyer Gary Sasso, represents Michael Perez in the appeal before the Florida Supreme Court. She wrote the following opinion exclusively for the Tampa Bay Times.  It was published on January 24, 2014.

In court, defendants are presumed innocent until proven guilty. But on the long journey from the back of a squad car to the dock, they are too often presumed guilty, and the legal system is heavily stacked against them before they get their day in court. That needs to change.

A case in point: high school dropout Michael Perez. Nearly 15 years ago, Miami detectives questioned the then 16-year-old Perez about the murder of Jimmy Ramirez. Perez repeatedly asked for a lawyer and to see his family, but the detectives told him that a lawyer was unnecessary and that they could not get his family. Perez says the detectives screamed at him, and he says he told them Ramirez was killed in a drive-by shooting. He said that he was innocent.

Late that night, the detectives got Perez to confess. Only then did they start to record the interrogation.

After Perez confessed and was charged with murder, he was assigned a public defender who argued that Perez was not mentally capable of making a valid confession. The teenager had frequent seizures and low brain function. The examiner concluded that Perez was mentally capable of confessing but expressed no view on whether he had been intimidated into doing so. Perez then pleaded guilty to second-degree murder and was sentenced to 40 years in prison.

Recently, another eyewitness came forward to say that Perez is innocent and that a now-deceased gang member killed Ramirez in a drive-by shooting. The new eyewitness waited to speak out until the gang member was killed because he did not want to risk his own life.

Perez is seeking to revoke his guilty plea and says the real killer told him he would kill Perez and his sister if he told the truth. A Miami trial judge rejected Perez's challenge, but a state appellate court overturned that decision and ordered that Perez should receive a full hearing on these new developments. The state has appealed this decision to the Florida Supreme Court.

The U.S. Supreme Court has established rules to protect innocent people from pleading guilty. It requires that all pleas be fair, voluntary, and taken only by a guilty defendant facing little chance of acquittal. But these criteria appear to be ineffective.

The Perez case is one of many cases where guilty pleas are entered in questionable circumstances. The Innocence Project, which helps exonerate wrongly convicted defendants, has produced two studies showing that innocent defendants are too often coerced into confessing to crimes they did not commit through overly aggressive interrogation. Of nearly 250 defendants who have been exonerated in the last 30 years, 32 percent suffered from mental disabilities, 63 percent were under the age of 26, and some, like Perez, lacked legal representation before confessing.

More disconcerting, the courts are too often accepting these problematic confessions as valid, and innocent people are being sent to prison. It is the defense counsel's job to protect defendants from this fate. But these lawyers have not witnessed the interrogations. Defendants must convince their attorney the confession was false, and the attorney must convince a court or jury that the confession was false. That can be an uphill battle.

When caught in a legal bind, the wealthy can afford to hire a defense team with substantial resources to devote to the case. With this edge, private-sector lawyers can protect them from confessing to crimes they did not commit and from accepting a plea agreement in desperation.

Indigent defendants must rely on court-appointed attorneys engaged only after the interrogation and confession. These attorneys are usually highly capable, but they often have too many cases to handle. They cannot devote the same attention to each case, and they may arrive too late to prevent overreaching by zealous law enforcement authorities.

Our justice system is not doing its job. To protect the innocent, better safeguards are needed. We need to apply the presumption of innocence from the beginning, not only at a trial. Courts should not accept dubious pleas, especially when the defendant has previously insisted on his or her innocence. Authorities should refrain from pressuring suspects to confess absent overwhelming evidence of guilt. This is especially important when the subject is young, unrepresented by a lawyer and facing serious charges like Perez did. To help ensure confessions are voluntary, all of a defendant's interactions with police interrogators should be recorded. Finally, the criminal justice system has to slow down the conveyor belt; the system needs to give each case a closer look in order to provide the protection the accused need and deserve.

Sunday, January 12, 2014

Scott Lewis case shows need for Connecticut conviction integrity unit

The following opinion by David R. Cameron was published in the New Haven Register on January 11, 2014.

A number of wrongful convictions and likely wrongful convictions have come to light in the state in recent years. But perhaps none more emphatically underscores the need for a conviction integrity unit than the case of Scott Lewis.

Lewis was tried and convicted in 1995 for the murders of Ricardo Turner and Edward Lamont Fields in New Haven in the early morning of Oct. 11, 1990. He was sentenced to 120 years in prison. Stefon Morant was tried separately for the murders and sentenced to 70 years.

Now, after years of unsuccessful appeals in state courts, Federal District Judge Charles S. Haight Jr. has ruled the state committed a Brady violation by failing to disclose evidence that was favorable to Lewis and impeached the testimony of the key witness for the prosecution. He ordered that Lewis be released within 60 days unless the state declares its intention to retry him.

There was no forensic evidence linking Lewis to the crime. The weapon used in the murders never was found. He was convicted on the basis the testimony of Augustine Castro, 16 at the time of the homicides, who went by his brother’s name Ovil Ruiz. His testimony was supported by that of Jose Roque, also 16 at the time of the crime and, like Ruiz, part of a drug operation in which Lewis and Morant were involved.

Ruiz was arrested in January 1991 in connection with another shooting. After questioning by New Haven Detectives Michael Sweeney and Vincent Raucci Jr., he told Raucci he overheard Lewis and Morant discussing the possibility that Turner, a banker and supplier for drug operations, might abscond with money and drugs. He said he, Lewis and Morant drove to Turner’s residence, Lewis and Morant went in, he heard gunshots, and Lewis and Morant came running out with two bags. Several weeks later, he saw Lewis throw the gun in the Mill River.

The evidence that was suppressed came to light in Morant’s 1999 habeas trial. Sweeney testified that on several occasions during the interrogation of Ruiz he had to ask Raucci to step outside, and tell him to stop giving him facts about the homicides. After Raucci resumed the interrogation without Sweeney and later emerged to say Ruiz had given him the full account, Sweeney went in and asked Ruiz if he was telling the truth. He said no, the information had come from Raucci.

Sweeney’s testimony in Morant’s habeas trial was entered into the record in Lewis’ 2001 habeas trial. But the judge rejected Lewis’ petition, claiming that all exculpatory evidence had been furnished to the defense in the original trial and the alleged evidence that Raucci influenced Ruiz’ testimony was available through the due diligence of the defense.

Judge Haight ruled the judge was wrong: Sweeney’s testimony was exculpatory, the defense wasn’t told about his interactions with Raucci, and the information wasn’t available through due diligence. He said the state clearly violated Brady v. Maryland (1963), the U.S. Supreme Court ruling that suppression of evidence favorable to a defendant violates the constitutional right to due process.

Lewis contacted the FBI and claimed he had been “set up” for the homicides by Raucci, who, he said, was a partner of the man who headed the drug operation and to whom Lewis owed money. An FBI investigation developed information that Raucci used drugs. He was suspended, later charged with billing the city for extra-duty work he didn’t do and assaulting his former girlfriend and, after pleading no contest, was given a suspended sentence.

The FBI also interviewed Ruiz and Roque. Both said their testimony against Lewis and Morant was false. Ruiz said they didn’t do it, that he had agreed to help set them up and had met with Raucci to plan it, and that he knew who did it because he was there. He said most of the account was true except that he replaced the names of those who were with him with those of Lewis and Morant.

Roque, who, like Ruiz, now is incarcerated, said he was threatened by Raucci with arrest for the murders if he didn’t provide a statement implicating Lewis and Morant, and that Raucci provided him with the information.

The state must decide if it will release or retry Lewis. In view of Sweeney’s testimony and the statements by Ruiz and Roque to the FBI, it’s inconceivable it will retry Lewis. But it needs to do more than release him; it must examine why it has taken so long for this egregiously wrongful conviction to come to light.

Perhaps more than any other, this case underscores the need for a statewide conviction integrity unit that would examine the basis for conviction in cases in which there is suspicion of official misconduct or perjury by highly unreliable witnesses. A number of major cities — Dallas, Houston, Chicago and Cook County, Manhattan and Brooklyn in New York — have created such units over the past half-dozen years. Connecticut should do the same.

David R. Cameron is a professor of political science at Yale and a member of the state’s Eyewitness Identification Task Force.