Monday, July 18, 2016

Bad tests, wrongful convictions and justice denied

The following editorial was published by the St. Louis (Missouri) Post-Dispatch on July 16, 2016.

Police in many states, including Missouri, increasingly are using mobile drug tests to perform spot checks during traffic stops. The kits can produce the wrong result in as many as one out of three instances. Americans of all racial and income backgrounds should shudder at the injustices dealt to law-abiding citizens.

Thousands of people may have gone to jail as a result of wrong test results. Arrest and conviction records follow them for the rest of their lives. Yet police officers continue to use the kits.

The New York Times and ProPublica recently reported on the extraordinary rate of “false positives” returned by test kits marketed to police under brand names such as Serchie Nark II. Different kits test for cocaine, marijuana, opioids or methamphetamine.

When a chemical mixture turns a certain color during the test, it signals to police officers that an illegal drug could be present. But the test used for cocaine also can return the same positive color for 80 other compounds, including acne medications and several types of household cleaners.

The high rate of false positives offers more than ample reason to question their continued use. Manufacturers like Serchie now warn that the results should be treated only as preliminary, and more thorough lab tests are required.

The case of Amy Albritton offers a stark example of how quickly such tests can ruin a life. She and a friend were driving to Houston from her home in Louisiana in 2010 when an officer pulled her car over. He asked permission to search her car and came up with a single, white crumb from the floor. His test kit returned the positive color for cocaine.

Thus began Albritton’s nightmare of arrest and negotiations with a prosecutor while she insisted she had not possessed illegal drugs. The result was a plea bargain that left a felony conviction on her record, discoverable whenever she applied for a job or to rent an apartment.

The test was wrong. The crumb, a subsequent test proved, was just a dried-up bit of food.

Years later, the Harris County district attorney’s office admitted the error, but it came far too late for her to recover her shattered life — lost job, lost apartment, a custody battle for her child.

In Houston, 59 percent of those wrongfully convicted because of faulty test kits were black, even though they constitute only 24 percent of the population. It usually requires money and lawyers to get false convictions expunged, and that’s where these injustices reap their biggest toll.

The presumption of innocence forms the basis of our judicial system. A highly flawed commercial field testing system must never be allowed to short-circuit the rights of law-abiding citizens.

Saturday, May 28, 2016

Neenah (Wisconsin) Police Department violates trust

The following editorial by the (Appleton, WI) Post-Crescent editorial board was published on May 6, 2016.

We watched more than 90 videos related to officers shooting a hostage outside Eagle Nation Cycles on Dec. 5, and have come to one conclusion: We have no confidence the leadership of the Neenah Police Department can run a force that protects its citizens.

The videos released by the Department of Justice are appalling in several ways.

  • Neenah police officers look ill-prepared as they storm Eagle Nation Cycles and their retreat appears disorganized.
  • Neenah police officer Craig Hoffer was shot in the helmet. Yet he went back on the scene after specifically being told not to by a police sergeant. He ended up shooting Michael L. Funk, a hostage who had escaped the motorcycle shop. 
  • Neenah police officers fired without warning. Officers did not order Funk to drop his handgun before shooting him. Rather, they yelled, "Show me your hands!" after they shot him and he hit the pavement. It would have taken literally less than a second to say "drop the gun" and an innocent man could still be alive. 
  • Most of all, we are outraged about the fact that a police officer gunned down a man and laughed about it.


This is indefensible.

There is not one person who can see video of a police officer laughing about killing a man and think that person should ever be employed as a cop with the power to kill.

Something is broken in the Neenah Police Department. The department is dysfunctional. The leadership is absent.

If the department's leadership team says its officers followed the department's policy — which was backed up by the Wisconsin Department of Justice and a consultant's report — then why is an innocent man dead?

And why are police laughing about it?

Neenah can't afford another innocent man gunned down by police and left to die.

Thursday, May 12, 2016

Pa. prosecutors' concern over wrongful convictions is long overdue: Andy Hoover

The following op-ed by Andy Hoover was published by PennLive on May 11, 2016.

Last month, the Pennsylvania District Attorneys Association released its new guidelines on witness interviews and photo lineups to prevent wrongful convictions.

With simultaneous press conferences in various areas of the state, the PDAA suggested it is serious about reforms to be sure that they are getting the right person during investigations.

It was not a difficult trail for the DAs to walk. This path was blazed nearly a decade ago by advocates, academics, lawyers, and other politicians.

In 2006, Senate Judiciary Committee Chairman Stewart Greenleaf,  R-Montgomery, proposed a novel idea when he introduced a resolution to create an advisory committee to study why innocent people are sometimes convicted of crimes and what are best practices for diminishing the likelihood of wrongful convictions.

At the time, the reality of innocent people in America's prisons had penetrated the national conscience.

Seven years earlier, Illinois halted its death penalty after it was revealed that the state had freed more innocent people from its death row than it had executed.

Several years after that, Greenleaf led an effort to loosen Pennsylvania law to give inmates with legitimate innocence claims greater access to DNA testing. That law led to the exoneration of several people who had served years in prison, including one man who had spent over 20 years on death row.

Studying root causes of wrongful convictions and fixing the criminal justice system to decrease the chances of it happening seemed non-controversial.

But when the committee started its work in 2007, the District Attorneys' association tried to undermine its legitimacy before it could even get started. At a press conference with then-District Attorney Lynne Abraham of Philadelphia, prosecutors complained about the make-up of the committee.

Never mind that the committee included Abraham and four other sitting district attorneys, including Ed Marsico of Dauphin County; Frank Fina of the Attorney General's office; two former attorneys general; Victim Advocate Carol Lavery and two other victims' rights activists; two chiefs of police; a retired FBI agent; and several former prosecutors.

The committee's work took four long years but, in 2011, it released its report, a 316-page tome that thoroughly analyzed the causes of wrongful convictions and offered a series of recommendations to fix the problem.

The committee's recommendations included greater preservation of biological evidence, changes in witness interviews and photo lineups, state-based funding for indigent defense services, video and audio recording of interrogations, and compensation for people who are wrongly convicted.

Unfortunately, law enforcement, led by the District Attorneys' association, released its own minority report.

That report diminished the committee's recommendations and refused to even acknowledge the reality of innocent people in prison.

Signers of the report included Marsico, Fina, Allegheny County District Attorney Stephen Zappala, and Philadelphia District Attorney Seth Williams, who had been elected to replace Abraham in the interim.

Perhaps most appalling of all, the minority report called the idea of compensating wrongly convicted people "preposterous." Compensation for innocent people who are convicted of crimes is probably not preposterous to Han Tak Lee.

Lee spent 24 years in state prison for a cabin fire in Monroe County that killed his daughter. His conviction was based on junk arson science.

Released in 2014 and now 81, Lee lost years of his life and now lives on public assistance and generous donations from a support group. A New York Times profile on Lee in March highlighted the negative impact of his incarceration on his mental health.

Lee isn't the only person who would benefit from a law to compensate the wrongly convicted. Through dogged investigative journalism, the late Pete Shellem of The Patriot News freed several Pennsylvanians who were serving life sentences.

After the committee released its report, legislation was introduced to implement many of its recommendations. The legislation went nowhere, largely as a result of the minority report from law enforcement.

Since then, the legislative effort to provide greater protections to stop wrongful convictions has had its starts and stops.

Bills to lengthen deadlines for introducing new evidence after conviction, to appropriate state funding to train public defenders, and to allow police to record interrogations without legal entanglements have stalled in the face of opposition from law enforcement.

There is every reason to believe that the commonwealth's district attorneys want to prevent the conviction of innocent people.

When that happens, an innocent person sits in prison while a guilty person continues to walk the streets. But to take District Attorneys' association newfound effort to implement best practices seriously, it has to be a more serious partner on reform.
It's nice that the district attorneys got religion on wrongful convictions. Many of us are left with a simple question: What took you so long?

Andy Hoover is the legislative director of the American Civil Liberties Union of Pennsylvania.

Thursday, April 21, 2016

Columbus police should open records in closed cases, lawyer tells Ohio Supreme Court

The following news report by Randy Ludlow was published by The Columbus Dispatch on April 20, 2016.

The refusal of Columbus police to release records underlying closed criminal cases could keep the innocent in prison and the true killers walking the streets, the Ohio Supreme Court was told Wednesday.

Past court decisions on which Columbus police rely to deny records should be overturned because a 2010 change in criminal discovery rules gave defendants expanded access to records held by police and prosecutors, Columbus lawyer Fred Gittes argued.

Gittes represents Donald Caster, an Innocence Project lawyer who claims that police violated public-records laws by refusing to release records in the case of Adam Saleh, who was convicted of the 2005 murder of Julie Popovich, 20, of Reynoldsburg.

Columbus police refused to release the case file, arguing that court decisions forbid the release of records as long as defendants have potential appeals, which generally can be filed anytime. Defendants also must use discovery rules, rather than records laws, to obtain records in their cases.

The Innocence Project, private investigators, journalists and others have an interest in obtaining criminal case files, with their work sometimes freeing the wrongly convicted or identifying true perpetrators, Gittes said.

“If you are in jail, you cannot get records unless you are freed … or dead,” Gittes said. “Until 2010, Columbus gave full public-records disclosure; suddenly a steel door came down … and now we can’t get any information out of Columbus.”

The justices, as part of their program to take oral-argument hearings on cases on the road, heard the police-files arguments before students in the gymnasium of Meigs High School near Pomeroy on the Ohio River.

Paula Lloyd, a lawyer representing the city of Columbus and Police Chief Kim Jacobs, faced repeated questioning by the justices in arguing that the city believes criminal case records cannot be released so long as defendants can appeal their convictions, even decades later.

Except for saying that police records could perhaps be made public once an inmate is released from prison, she endured justices’ questions on when in the judicial process records should be released.

“Your argument seems ridiculous,” Justice Paul E. Pfeifer told Lloyd.

Gittes stressed that exemptions to the public-records act, such as those protecting confidential informants, still could be used to withhold sensitive information, but that Columbus police are issuing blanket denials for case files. The Dispatch also has been denied police records in murder cases.

The Innocence Project does not represent Saleh, who is 28 and serving 38 years in prison, but it wants to review his police case file to assess his claim that he was wrongly convicted on the basis of false testimony by jailhouse informants that he had indicated he killed Popovich.

Wednesday, April 13, 2016

Wrongful conviction highlights the need for reform

The following editorial was published by the Richmond (VA) Times-Dispatch on April 11, 2016.

Keith Allen Harward walked out of prison a free man last Friday — 33 years after being convicted of a crime he didn’t commit.

Many people deserve credit for helping him — from the justices of Virginia’s Supreme Court, who acted swiftly on his writ of innocence, to his lawyers with the Innocence Project, who filed it. But we were struck that Harward singled out a reporter: The Times-Dispatch’s Frank Green, whose stories Harward credited with adding urgency to the actions of state officials.

Green is an award-winning newspaper veteran — honored again recently as Outstanding Journalist of 2015 by the Virginia Press Association — and a practitioner of old-school journalism, the kind that wears out a lot of shoe leather chasing down leads and checking facts. He does the sort of hard work that drive-by talking heads, news “aggregators” and most bloggers rely on — sometimes without even crediting the source. He gets results.

But while it’s gratifying to see Harward walk free, that should not be the end of the story.

First, he deserves compensation. No amount of money can make up for the decades the commonwealth took from him, and all the things that might have been: a family, a career, a home to grow old in, the million little pleasures that daily life affords — none of which he got to experience. Money is a poor substitute, but the state owes him at least that much. It’s also apparent from some of Harward’s comments Friday that the injustice of his imprisonment was compounded by some dark experiences behind bars: “There are some evil, sadistic people back there,” he said standing outside the Nottoway prison he had just left. “And there’s some bad inmates, too. Think about what I just said.”

Second, there should be some accountability. Although the doctrine of sovereign immunity generally shields government employees from civil liability, exceptions can apply in cases of gross negligence. We can’t say whether the missteps and, in Harward’s telling, willful disregard for the truth that led to his imprisonment legally qualify. But to the extent those responsible for his conviction can be held to account, they should be.
Third, Harward’s case should shock the commonwealth into adopting systemic reforms. Among them: a serious reconsideration of the value of bite-mark analysis, which played a key role in his conviction and which might be not much better than astrology in terms of scientific rigor.

The state also should require more thorough prosecutorial discovery — the process in which the state allows defense attorneys to see the evidence against their clients. The Supreme Court’s ruling in Brady v. Maryland requires prosecutors to disclose all exculpatory evidence. But Virginia allows commonwealth’s attorneys to choose what qualifies as exculpatory. That’s an inherent conflict of interests that begs for redress.

And the state should ask Harward for details about the “evil, sadistic people” he spoke of. Individuals like that should not have the kind of power prison guards wield.

No matter how many reforms are adopted, of course, the judicial system never will achieve perfection. No system that involves flawed human beings can. But that sobering reality should not provide an excuse for less than total effort in the pursuit of perfection. What happened to Harward — and others before him, such as Earl Washington and Thomas Haynesworth — is simply heinous. Virginia should not compound those crimes with indifference about whether similar ones might happen in the future.

Emails to Sheriff in Avery and Dassey Cases are Harshly Critical

Sheila Berry, President
Truth in Justice

Before the internet, I believed that if people just knew the truth about controversial issues, they would demand that the right and moral thing be done.  Comments sections in online newspapers, blogs and discussion boards demonstrated just the opposite.  The postings by the public when the Avery and Dassey murder case occurred reflected the lowest urges of human beings. Long before the trials began, a return to the death penalty (abolished in Wisconsin in 1853), with retroactive application to Steven Avery and Brendan Dassey, was demanded, and bills were introduced in the state legislature.  (These lost steam when it was determined it could not be applied retroactively.)  Average citizens believed whatever the Manitowoc Sheriff, special prosecutor Ken Kratz and investigators from the Wisconsin Department of Justice and Calumet County told them.  They were heroes.

Ten years later, Making A Murderer turned the tables.  This wasn't a quick reiteration of the prosecution's claims, 53 minutes air time on a commercial network.  Over the course of 10 one-hour segments, Moira Demos and Laura Ricciardi peeled back the layers of corruption and lies and showed us who the real criminals were.  The public reaction was swift and, to me, surprising.  Here are 20 representatives emails received by the Manitowoc Sheriff's Office in the two months following debut of the series.  These were obtained by USA Today through and Open Records request.

1. "Saw your show on Netflix! Manitowoc County is now officially on the map for having the most corrupt (law enforcement officers) in the nation, congrats. I used to think of cranes when I heard the name Manitowoc, not anymore."

2. "I had recently fell into a large sum of money and was thinking of moving to your county, but after what I saw concerning your department’s cover-up and framing Steven Avery and his nephew, I was seriously taken aback. There is NO WAY I will move there, your state prosecutor is a snake, your judges are corrupt and the ease in which you framed those two innocent men, well your cover-up has just reaffirmed my mistrust in the judicial system and police. Nice job!"

3. "I know you keep defending your crime mob department saying that people don’t know all the facts and by discrediting the documentary, but whether he is guilty or not, how in the hell do you and your mobsters sleep at night? … Your office might be the most corrupt organization in North America now that El Chapo has been captured. You and your department are the very reason that great officers and departments throughout our country are losing respect and trust from the American people."

4. "May God forgive the morally corrupt officers who participated in this case. Whether Steven Avery or Brendan Dassey are innocent or guilty they sure got railroaded by the indecent actions of your department. I truly wonder about the way justice is meted out in Wisconsin and Manitowoc County in particular."

5. "As the father of a Down syndrome age 16 daughter, I know how easy it is to manipulate a mentally challenged person by promising what they want at a precise moment. Regardless of guilt or innocence, what your office did to manipulate that young man’s testimony in the Avery case was repulsive and I would suspect unconstitutional. That will be determined in federal court, I hope … Hopefully you run a more honest and transparent ship than did the prior sheriff."

6. "Your entire sheriff dept are the ones who should be tossed in jail … It makes me ashamed to be from Wisconsin and you can bet I won’t be in a hurry to ever drive past your cesspool of evil. Ever … God will deal with everyone who had a hand in this mess, you can be sure of that. Just because the Pope said God welcomes sinners doesn’t mean the door is open for Manitowoc County … I am a Christian woman and am having a very hard time with what I have seen. No, I don’t think God will help any of you, as you know the truth and have done nothing."

7. "Tell me please, what has Steve Avery done to this community that he deserved to be set up for a murder? All evidence points towards the incompetence of your department … I hope and pray your department and local police and that judge are found out, and YOU rot in jail. You are unbelievable. What did that man ever do to you people? Why him? Why?"

8. "I am certain I did not see everything that happened in that trial. But I am equally as certain that what I did see, and hear, was more than enough to not only show a preponderance of reasonable doubt, but to convince me that Manitowoc County ... is replete with corruption. To be sure, I am not saying Mr. Avery was innocent, but, there was clear and convincing evidence, to me, of a massive amount of reasonable doubt which means he is innocent in this country. You all may have won a trial ... against one uneducated man, but you all have lost so much more. Everything your pathetic county stands for is forever tarnished with the mockery of justice that was promulgated in that courtroom."

9. "I just wanted to reach out with disgust at how your department handled the Steven Avery case. The facts are obvious that your department had something to do with this and a cover-up looks to be very clear. Your department has lost all credibility and right now is in the media because of your inability to prove justice … One day it will come out that James Lenk and Andrew Colborn planted evidence in this case that lead (sic) to Steven’s arrest. What will your department come out and say then? You better hope you have a good PR team handy."

10. "Shocked seeing the Netflix series 'Making a Murderer.' I simply cannot comprehend how our (civilized) world can so easily step over the aspect of reasonable doubt. It is sad to see for the world that the state of Wisconsin still lives in isolation and narrow-minded thinking."

11. "I am sure that after you are all exposed, you will not feel any regret for putting an innocent man in prison for the majority of his life; I am sure the only regret you will feel is that of being caught. But I hope that one day you will perhaps feel the embarrassment and shame that your families will feel and then maybe you will begin to understand that what you do has an (effect) on others."

12. "We just finished learning about the Teresa Halbach murder case. I’m not sure I can look my kids in the eye and believe my own words anymore. Maybe the nightly news has been right all along: we live in a corrupt and violent world where not even small-town justice is free from corruption and agendas … The city of Manitowoc and the state of Wisconsin should be ashamed of who was/is representing them and who was/is supposedly protecting its citizens. I can, however, now look my children in the eyes and say, 'at least we don’t live in Wisconsin.'"

13. "The actions towards the Avery family by the Manitowac (sic) Sheriff’s Department are among the most deplorable examples I have seen of pure evilness in human society … I hope you are aware that a growing portion of this country, if not this planet, is under the opinion that your department is corrupt and a great shame to the American people, our government and our Constitution."

14. "I would be embarrassed to hold my head up high knowing that your department has sentenced an innocent man twice to jail and also a special boy who hasn’t even enjoyed life yet. I hope that detective Lenk and Goulburn (sic) rot in hell as it is almost certain that they are behind this corruption and lies … I hope use (sic) all can’t sleep at night and justice comes your way. What a joke of a department."

15. "I would be fearful to ever take my family on a trip and stop in your county to even get fuel. I’d run the grave risk of being arrested for arson and armed robbery before my tank was filled with gasoline. According to social media, people all across America feel the same way. How sad for your county’s image. I truly feel sorry for the residents of your county who will be judged according to the actions of a few."

16. "The documentary exposes the level of corruption in your department. Nothing you say will convince vast majority of your citizens that you are good guys. The facts and evidence tell a different story. Steven Avery and Brendan Dassey are innocent. Your department is corrupt and all of you should be prosecuted to the highest extend (sic) of law."

17. "You should be ashamed of yourself and the crooked department you run. The injustice that Steven Avery experienced during the murder trial of Teresa Halbach is INSANE! Your department is a JOKE. Your entire county is FILLED with white trash idiots and you have the audacity to bully and pick on him all this after falsely imprisoning him for 18 of his prime years of his life. God Bless his mother and father who have had to live through this … I would NEVER EVER visit your town in fear that if I were to run a stop sign, you would have me arrested on a murder charge. Shame on you."

18. "I would never travel to your town as it is apparent there is a lot of corruption in the sheriff’s office, the disgraceful prosecutor, and even the judges, including the appellate courts … It is truly unbelievable that your community could make such a travesty of the judicial system. Not surprising that Mr. Kratz resigned as a result of disgraceful behavior. Please know that your judicial system looks like you all are unethical, immoral and corrupt. And the sad thing is … there is a murderer out there who has gotten away with it! Unbelievable! Does Wisconsin know what JUSTICE is?"

19. "Remind me not to move to your county! You guys will convict anyone for anything without evidence. I find it amazing that anyone involved from your county involved in the Steven Avery case can sleep at night. One of the biggest liars even got promoted to (lieutenant)? Truly shameful."

20. "Never have I heard of such corruption at the hands of law enforcement as in the case of Steven Avery. People like you are a plague on our country. Those responsible for this miscarriage of justice – the countless employees of Manitowoc who acted illegally, who lied, and who turned a blind eye to the unethical actions of their peers all deserve to burn in hell. You are responsible for the distrust and hatred for law enforcement that is ever-prevalent in our society – and these sentiments are DESERVED.

Tuesday, March 29, 2016

George Boardman: We're finding more people behind bars who don't belong there

The following op-ed was published by The Union (Western Nevada County, California) on March 27, 2016.

California’s district attorneys scored a rare victory last month in their battle to turn the tide on criminal justice reform when they got a Superior Court judge to reject Gov. Jerry Brown’s attempt to get a sweeping prison and parole initiative on the November ballot.

Brown’s initiative, which would make certain non-violent felons eligible for early parole, was filed in January as an amendment to a measure that would allow judges rather than prosecutors decide when to try teenagers as adults.

The prosecutors, led by Sacramento County DA Anne Marie Schubert, argued that Brown’s measure constituted a “completely different and new initiative” that should go through its own review process. The judge agreed, and Brown has appealed the decision to the state Supreme Court.

Brown’s initiative, and the juvenile justice measure he tried to ride onto the ballot, are part of a growing trend away from the lock-them-up-and-throw-away-the-key philosophy that has dominated the criminal justice system in recent decades. The trend picked up speed in 2014 with passage of Proposition 47, which turned some low-level felonies into misdemeanors and made some other changes that displease law-and-order advocates.

rown said his new initiative would reverse “unintended consequences” of fixed-term sentencing standards he signed into law during his first go-round as governor. They and other laws have left offenders with few incentives to rehabilitate themselves while in prison, Brown and others say.

But critics point out that crime rates in San Francisco, Los Angeles and other cities have increased since the passage of Proposition 47, with a big jump in property crimes that are now misdemeanors instead of felonies. Whether this is a long-term trend or a blip during a long period when crime has been flat or down remains to be seen.

While it’s the job of prosecutors to put bad guys behind bars, they also need to make sure that the people going to prison truly deserve it. There are enough examples of people being wrongfully convicted of crimes to make you wonder if justice is always the top priority of the criminal justice system.

The California Innocence Project says there have been at least 200 wrongful convictions in California since 1989, costing taxpayers $129 million in damage awards and other costs. The National Registry of Exonerations reports that 149 wrongfully convicted people were exonerated in 2015, a record. Among them were 19 convicted killers serving life sentences, and five who had been sentenced to death.

How can this happen? According to the Innocence Project’s analysis of wrongful California convictions, 39 percent could be traced to official misconduct, 42 percent involved perjury or false accusations, 26 percent were cases of mistaken identify, and 19 percent were attributed to an inadequate or ineffective defense. (The total is more than 100 percent because many cases involved multiple causes.)

While none of this is new to close observers of the criminal justice system, little has been done to correct the situation. Eyewitness testimony is very persuasive to juries, yet it remains admissible in courts almost without caveat.

While some interrogation methods are more likely than others to produce false confessions, there are no national standards. Most states don’t require interrogations to be videotaped, and all allow police to lie to suspects.

As we know from the Ramparts scandal in the Los Angeles Police Department and the Riders scandal in Oakland, some rogue police will do anything to create the evidence needed to convict somebody. Many prosecutors appear to be too willing to believe everything the police tell them.

Then there’s the whole area of forensic evidence. With the exception of DNA (which emerged from biology, not criminology), forensic tests don’t have to meet any national standard before they’re admissible as evidence. Texas, hardly known as soft on criminals, recently banned the use of bite mark analysis in criminal cases.

Critics said bite mark analysis should have joined bullet-lead analysis and microscopic hair analysis long ago as discredited evidence. “For far too long courts have permitted this incredibly persuasive evidence that is cloaked in science, when in fact there has been no scientific research to substantiate…claims that it is possible to identify someone from bite marks,” said a spokesman for the New York Innocence Project.

While they shouldn’t have been convicted in the first place, those who have been exonerated are the lucky ones. These tend to be the cases where the miscarriage of justice was the most obvious, or that attracted media or public attention, or were taken up by advocacy groups.

The registry believes the number of wrongful convictions is in the thousands each year, but little is being done to bring justice to these people. Just 24 of 2,300 local prosecutors’ offices in the country have conviction-integrity units that look for people who should be freed, and they accounted for one-third of all exonerations last year. It makes you wonder how many more were missed.

“Increasingly, prosecutors, judges and defense attorneys are recognizing the systemic problem of wrongful convictions,” said the registry report’s author, Samuel Gross of the University of Michigan Law School. “That’s a welcome change, but it’s just a start. We’ve only begun to address this problem systemically.”

Most incarcerated people deserve to be behind bars, but every case of wrongful conviction increases public mistrust of the criminal justice system.

* * *

George Boardman lives at Lake of the Pines. His column is published Mondays by The Union. Write to him at

Monday, February 15, 2016

The greatest injustice

Editorial published by the Toledo Blade on February 14, 2016.

Ohio state prisons probably hold hundreds of innocent people. Most of them will never get justice.

Nothing so violates the sanctity of the law as condemning the innocent. In the few cases where such travesties are exposed, the state should acknowledge and learn from its errors, and act quickly to redress them.

That’s not how it goes in Ohio, which has erected onerous legal hurdles to compensating the wrongfully convicted. State lawmakers should remove these excessive and oppressive barriers to justice and allow the wrongfully convicted to take their cases directly to Ohio’s Court of Claims.

To its credit, Ohio is one of 30 states that compensate wrongfully convicted prisoners, who can claim damages of roughly $50,000 for each year in prison. (Texas pays $80,000 a year.) The Court of Claims calculates the amount of judgments, based on time served, lost wages, and legal fees.

Convictions and exonerations

But before those with wrongful convictions may file with the Court of Claims, they must file suit in local courts to affirm that they were wrongfully imprisoned. If prosecutors object, getting such an order is difficult, if not impossible.

In some cases, people with rightful claims might never file with a local court. In others,  procedure eclipses justice. The National Registry of Exonerations, run by the University of Michigan Law School, lists 63 wrongful convictions in Ohio since 1989. During that period, the Ohio Court of Claims awarded only 40 judgments, ranging from $11,069 to $2.5 million.

The state has, in effect, legitimized the noxious notion that people who have been wrongly declared guilty, and suffered the consequences, must also prove their innocence to get redress.

Case of Danny Brown

Toledo’s Danny Brown, now 60, is a case in point. His wrongful conviction and nearly 20 years in prison should entitle him to more than $1 million from Ohio’s Court of Claims. But nearly 15 years after his release, he still has not received compensation or a local court order affirming his wrongful imprisonment.

In 1982, a Lucas County jury convicted Mr. Brown, who was represented by a court-appointed attorney, of the brutal murder of Bobbie Russell. In December, 1981, she was hit in the head, raped, and fatally strangled with an extension cord in her east-side Toledo home. Ms. Russell’s son, Jeffrey, then 6, the sole eyewitness, identified Mr. Brown as the man who entered his mother’s home the night she was raped and murdered.

In 2001, prosecutors dismissed the charges against Mr. Brown, after a DNA test identified semen from the crime scene as Sherman Preston’s. Preston, now 64 and serving a life sentence at Marion Correctional Institution, has been in prison since March, 2000, for another, strikingly similar 1983 murder. He declined to talk to The Blade’s editorial page last week.

Mr. Brown also took a lie detector test and passed. In 2002, he filed suit in Lucas County Common Pleas Court, asking the court to affirm that he had been wrongfully imprisoned. He lost his suit, after the Lucas County Prosecutor’s Office maintained, based largely on Jeffrey Russell’s unchanging testimony, that Mr. Brown remained a suspect. In 2006, Ohio’s 6th District Court of Appeals upheld the suit’s dismissal in a 2-1 ruling.

Lucas County Prosecutor Julia Bates, who took office in 1996,  told The Blade’s editorial page that she has no immediate plans to retry Mr. Brown. She now has a reasonable doubt about his guilt. But she also believes that Preston and Mr. Brown could have both participated in Ms. Russell's murder. Mr. Brown said he doesn't know Preston.

“There are a lot of unanswered questions,” Ms. Bates said this month. “If he didn’t do it, I’m sorry.”

That’s little consolation to Mr. Brown, who is sick, broke, and living in a Toledo homeless shelter, as the column on the next page by The Blade’s deputy editorial page editor, Jeff Gerritt, shows. Mr. Brown can’t prove he didn’t kill Ms. Russell, but neither could anyone who doesn’t have an airtight alibi for the night of Dec. 5, 1981.

Mr. Brown’s attorney, Patrick Quinn of Columbus, has filed another suit on Mr. Brown’s behalf in Lucas County Common Pleas Court. Justice now rests with Judge Gene Zmuda, who has yet to rule on the latest suit.

“I just want my name cleared,” Mr. Brown told The Blade’s editorial page last week.

Learning from mistakes

Wrongful convictions violate the most sacred tenets of the U.S. criminal-justice and legal system, including the presumption of innocence and a standard of guilt beyond a reasonable doubt. Those protections against tyranny underscore that punishing the innocent is more egregious than not punishing the guilty.

Since 1989, DNA technology has exonerated at least 337 people in this country. But DNA evidence — blood, semen, saliva — is available in only a scintilla of criminal cases.

Not all wrongful convictions are clear-cut DNA cases. Dedicated advocacy groups such as the Ohio Innocence Project at the University of Cincinnati have reversed convictions by discovering other compelling new evidence of perjury, false accusations, police misconduct, faulty eyewitness identification, unreliable informants, or a woefully inadequate defense.

The National Registry of Exonerations lists 1,738 wrongful convictions since 1989. Sadly, many innocent  men and women will never make that list. Extrapolating from error rates in DNA cases, researchers estimate that between 1 and 5 percent of all U.S prisoners are innocent of the crime they were convicted of.

An error rate of 1 or 2 percent makes an excellent score on a high school history exam — but it’s horrifying for a criminal justice system that sends people to prison and even to their death. A 2 percent error rate would mean nearly 50,000 U.S. prisoners, including 1,000 in Ohio, are innocent.

The office of Ohio’s attorney general, or an independent commission of the General Assembly, should examine and dissect every wrongful conviction in the state and determine what went wrong. The registry should also prescribe changes to prevent similar mistakes, such as requiring police to videotape all interrogations and improving the state’s public defense system.

Reducing wrongful convictions would have economic benefits as well as costs: Incarcerating an innocent person costs states between $25,000 and $40,000 a year.

But wrongful convictions are far more than economic liabilities or collateral damage in the war on crime. Raising the profile of wrongful convictions, learning from their mistakes, and compensating their victims in an expeditious manner are moral imperatives to redress the state’s greatest injustice.