Sunday, July 16, 2017

Texas cracks down on the market for jailhouse snitches

The following editorial was published by the New York Times on July 16, 2017.

Prosecutors love jailhouse informants who can provide damning testimony that a cellmate privately confessed to a crime. Jailhouse informants, in turn, love the perks they get in exchange for snitching, like shortened sentences, immunity from prosecution or a wad of cash.

As you might imagine, though, in a market driven by such questionable motives, the testimony these informants provide is often unreliable.

Even worse, it can be deadly. False testimony from jailhouse informants has been the single biggest reason for death-row exonerations in the modern death-penalty era, according to a 2005 survey by the Center on Wrongful Convictions. They accounted for 50 of the 111 exonerations to that point, and there have been 48 more exonerations since then.

Last month, Texas, which has been a minefield of wrongful convictions — more than 300 in the last 30 years alone — passed the most comprehensive effort yet to rein in the dangers of transactional snitching.

Texas has become a national leader in criminal-justice reforms, after having long accommodated some of the worst practices and abuses in the nation. The state, particularly in light of past abuses, deserves credit for seeking innovative solutions to problems that have long proved resistant to change.

The new law requires prosecutors to keep thorough records of all jailhouse informants they use — the nature of their testimony, the benefits they received and their criminal history. This information must be disclosed to defense lawyers, who may use it in court to challenge the informant’s reliability or honesty, particularly if the informant has testified in other cases.

The law was recommended by a state commission established in 2015 to examine exonerations and reduce the chances of wrongful convictions. The commission also persuaded lawmakers to require procedures to reduce the number of mistaken eyewitness identifications and to require that police interrogations be recorded — smart steps toward a fairer and more accurate justice system.

But the new procedures on jailhouse informants shouldn’t have been necessary in the first place. Under longstanding Supreme Court rulings, prosecutors are required to turn over any evidence that might call an informant’s credibility into question — such as conflicting stories or compensation they get in exchange for their testimony. Yet far too many fail to do so.

A better solution would be to bar the use of compensated informants outright, or at least in cases involving capital crimes, as one Texas bill has proposed. Studies have shown that even when a defense lawyer is able to make the case that an informant has an incentive to lie, juries are just as likely to convict. And that’s assuming a defense lawyer uses such evidence — not always a safe assumption given the wide range of quality in the defense bar.

Also, making evidence admissible at trial only goes so far. The vast majority of convictions are the result of guilty pleas, which means a defendant may not even find out that an informant was paid to incriminate him before having to decide whether to accept a plea offer.

Some states have begun to require that judges hold hearings to test an informant’s reliability, much as they would test an expert witness’s knowledge — before the jury can hear from him.

But the deeper fix that’s needed is a cultural one. Many prosecutors are far too willing to present testimony from people they would never trust under ordinary circumstances. Until prosecutors are more concerned with doing justice than with winning convictions, even the most well-intentioned laws will fall short.

Thursday, April 13, 2017

Jeff Sessions wants to keep forensics in the Dark Ages

The following opinion by Radley Balko was published on April 11, 2017 by the Washington Post.\

When Jeff Sessions was a senator on the Senate Judiciary Committee, he was part of hearings to address the National Academy of Sciences report on the use of forensics in America’s courtrooms. The NAS report had been commissioned by Congress after DNA testing had revealed not only that hundreds of people had been wrongly convicted of serious crimes like murder and rape, but also that about half those people had been convicted due in part to or because of forensic testimony that could only have been wrong.

Sessions wasn’t buying it. “I don’t think we should suggest that those proven scientific principles that we’ve been using for decades are somehow uncertain and leaving prosecutors having to fend off challenges on the most basic issues in a trial,” he said, rebutting the scientists who had come to precisely that conclusion in their report. The “scientific” and “proven” parts were precisely what the report found lacking in too many forensic disciplines. Sessions either didn’t read it — he has a record of criticizing reports without reading them — or simply dismissed it.

When witnesses noted that there was no scientific research to support the field of handwriting analysis, Sessions remarked, “Well, I’ve seen them testify and I’ve seen blow-ups of the handwriting, and it’s pretty impressive.” Who are you going to believe, a team of scientists, or Jeff Sessions’s sense of wonder?

Longtime critics of bad forensics worried that the NAS report was too diplomatic: For example, it didn’t call for the abolition of any dubious disciplines. But for Sessions, even tepid criticism of the tools he and other prosecutors had used for years was a threat. One witness at the hearings was a prosecutor from Wyoming who was testifying in opposition to the report. Sessions tossed him a softball: “Do you believe that the report, perhaps trying to get our attention, used some pretty strong language suggesting the unreliability of what I have always understood to be proven scientific techniques? Is that something that the district attorneys are finding . . . that this is being thrown up to create the impression with a jury that there’s no basis for these kinds of reports?” His main concern was not whether evidence was accurate, but whether the report could make it more difficult to get convictions.

All of which brings us to the big news this week, which, given Sessions’s history, shouldn’t be terribly surprising.

Attorney General Jeff Sessions will end a Justice Department partnership with independent scientists to raise forensic science standards and has suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisers.

In a statement Monday, Sessions said he would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013.

A path to meet needs of overburdened crime labs will be set by a yet-to-be-named senior forensic adviser and an internal department crime task force, Sessions’s statement said.

The announcement came as the commission began its last, two-day meeting before its term ends April 23, and as some of its most far-reaching final recommendations remained hanging before the department.

The NCFS was created by the Obama administration in the wake of mounting evidence that forensic evidence was being misstated and misused in courtrooms. The commission was charged with coming up with broad directives on proficiency training, accreditation and certification, and quality control practices.
Sessions’s decision to end the commission is somewhat complicated by a vote the commission members took earlier this year. Under a memorandum of understanding with the Justice Department, the NCFS was initially commissioned to operate for two years. During discussion over what to put in a summary report of the commission’s work, the members voted 16 to 15 not to include language recommending that the commission be renewed.

That could be interpreted to mean that the NCFS members themselves voted to end their own commission — which would make Sessions’s decision to end it seem less controversial. But sources familiar with committee deliberations tell me that this isn’t quite right — a strong majority of the commission does want to continue its work. Some of the 16 who voted against the measure did so because they thought the summary report should include only the commission’s findings; they felt that adding the language about renewal seemed self-serving. Others believe the commission is important and should continue but were somewhat disillusioned by the new administration’s antipathy toward science. Still others wanted the commission to continue, but under a new structure and organization, preferably outside of the Justice Department. According to the sources, there were a few members who may have voted to end the commission entirely, but they were firmly in the minority.

Sessions may not be finished. There’s another important forensics reform initiative started during the Obama administration that Sessions may target next. The National Institute of Standards and Technology (NIST) also oversees forensic science and has long sponsored “working groups” in various fields of forensics. One such working group is currently looking into fingerprint analysis, a field Sessions seems particularly concerned may soon be undermined by scientists. The working groups have been around for decades, but under President Barack Obama, NIST also established the Organization of Scientific Area Committees, or OSACs. These are committees of practitioners, scientists and skeptics who have been asked to delve into the scientific research supporting or refuting more than two dozen fields of forensics.

NIST is under the Commerce Department, not the DOJ, so Sessions couldn’t himself disband the working groups or the OSACs. But the OSACs are partly funded by the DOJ. Sessions could halt that funding. According to recent public comments from the OSAC’s director, NIST has been looking for alternate sources of funding to keep the committees operational.

Once caveat worth noting here: As is often the case with these sorts of committees, the OSACs themselves have been subject to infighting and politicking. As I’ve pointed out here at The Watch, for example, the OSAC looking at bite-mark analysis was loaded with a majority of members who either practice or openly support bite mark matching. Still, the committee also included skeptics, and any recommendations would have to be approved by the NIST Forensic Science Standards Board, a group made up almost entirely of established scientists. Whatever their flaws, the OSACs are at least taking a hard look at problematic fields of forensics and trying to establish uniform standards in others.

Even if Sessions can’t unilaterally end the OSACs or NIST working groups, he wields considerable influence in the Trump administration. Trump himself, like Sessions, spouts law-and-order rhetoric, seems skeptical of criminal-justice reform, and is a man who has little patience for inconvenient science. It isn’t difficult to imagine Sessions persuading Trump to go after NIST as well. There’s a reason the old guard in the forensics community celebrated Trump’s election.

Judging by his public record, Sessions believes the criminal-justice system’s primary job is to fill up prisons. You need only look at his enthusiasm for the drug war, his efforts to block sentencing reform or, well, just about anything he has said on the topic over the course of his career. And as we’ve seen with his statements on policing, he’s also no fan of federal oversight. It shouldn’t be surprising why he seems so irked by reforms that would undermine both views.

During his time in the Senate, Sessions’s main concern when it comes to forensics has been that the field suffered from a lack of funding, which he worried causes backlogs and over-burdened crime labs — all of which makes it more difficult to put people behind bars. “So, tens of thousands of people, I suggest, are not being promptly tried,” he said at the 2009 hearing on the NAS report. “While they’re out on bail or un-indicted, they’re committing crimes this very moment. A lot of that is because we’ve not invested enough in our forensic sciences so that we can get accurate and prompt reports.”

For Sessions, the federal government’s only real responsibility in the area of forensics is to provide the resources and training necessary to help local cops and prosecutors put people in prison. Any oversight or quality control is meddling. The FBI’s own history shows why he’s wrong. Over the past several years we’ve learned that the agency — whose crime lab is considered one of the most prestigious in the world — faked an entire field of forensic science. Not once, but twice.

But when law enforcement clashes with science, Sessions sides with law enforcement. And this really gets to the  heart of the ongoing problem with forensics. Most fields of forensics were invented and developed by police agencies, not in scientific labs. In fact, for most of the 20th century, the scientific community largely steered clear of the criminal-justice system. Science and law are two entirely different fields. They’re driven by different goals, different processes, and different values. Science is the gradual accumulation of knowledge through trial, error and corroboration. The criminal-justice system tries to get at truth through an adversarial process, after which it prioritizes preserving jury verdicts.

But prosecutors also learned early on that jurors like expertise, and so a demand emerged for expert witnesses. Unfortunately, no one was making sure the expertise on offer was legitimate. And so we got an entire profession of experts who were willing to say things that actual scientists wouldn’t.

Juries crave certainty. They swoon for expert witnesses who can wow them with technology. Real scientists don’t speak in certainties. They talk about margins of error, which means jurors find real science less convincing. Our adversarial system may be the best system available for assessing evidence, but it’s hostile to good science. That’s why it’s important that experts willing to tell juries un-scientific things be barred from the courtroom. It’s why we need judges to consult with real scientists when making such decisions. And it’s why we need prosecutors honest enough to resist the temptation to seal convictions with charlatanism masquerading as expertise.

But the system also makes all of those things difficult, so it wasn’t until the 1990s and DNA testing — technology developed by scientists, not law enforcement — that we began to see just how wrong forensic analysis could be. There were particular problems within the highly subjective disciplines known as “pattern matching” — fields like hair and fiber analysis and bite-mark matching. Even then, it took another couple of decades before the scientific community began to rigorously apply the scientific method to the claims and methods of forensic analysts. Once they did get involved, in report after report — including that 2009 NAS report, reports from the Texas Forensic Science Commission, and the President’s Council of Advisors on Science & Technology (PCAST) report last fall — the “science” in”forensic science” has been found to be somewhere between insufficient and nonexistent.

And yet instead of a sense of humility at the profound implications of these reports, law enforcement officials and prosecutors like Sessions have retreated to the battle lines that defined much of the last century. They’ve attacked the scientists as biased, or made bizarre arguments that forensics should be judged on principles other than scientific principles. (Before we give the Obama administration too much praise, it’s worth pointing out that after PCAST issued its damning report on forensics last year, Obama’s own attorney general Loretta Lynch immediately dismissed it.)

In only the past decade or so, we have finally managed to nudge forensic analysis at least partly out from its dark ages. While the courts haven’t paid much attention yet, these committees and their reports were the first steps toward subjecting forensics to principles like peer review, blind testing, statistical analysis and the more modern concepts grounded in those principles, like sequential unmasking. Sessions is poised to eradicate that progress.

It’s hard to overstate the urgency here. As I’ve written before, DNA testing was a wake-up call. It is not a panacea. In the small pool of cases for which DNA testing is dispositive of guilt, the technology revealed serious problems with our criminal-justice system, and forensic evidence was one of the most significant. But the window of opportunity to correct the mistakes exposed by DNA testing will remain open only as long as DNA exonerations are fresh enough in the minds of the public to sustain support for reform. Soon we’ll have exhausted the pool of cases that are old enough to have been decided before DNA testing would have been done early in the investigation, but recent enough that the DNA sample is still available and hasn’t degraded. If the Jeff Sessionses of the world can put off reforms until those cases are exhausted, it becomes much easier to argue that the problems DNA testing exposed are mere relics of the past — that we needn’t worry about all of this anymore. And if we don’t fix the problems DNA testing has exposed, they’ll continue to plague all the other cases for which DNA testing isn’t useful. There will be few new exonerations to argue otherwise, and in the meantime, there will always be a grisly murder or brutal rape in the news to demagogue about the danger of “tying the hands” of police and prosecutors — a tactic Sessions deploys with ease. Only this time, there might be no new technology to let us know that we’re making mistakes. We’ll continue on, blind to the problems we failed to fix.

The Obama administration finally provided a platform and framework for real scientists to scrutinize the way forensics is used in the courtroom — but then largely ignored their recommendations. The Trump administration now seems intent on eliminating the platform, too.

That window for reform is closing, and Sessions seems content to let it slam shut. He’d prefer to keep forensics in the dark.

Monday, April 03, 2017

Finley: State should expedite wrongful conviction claim

The following opinion by Nolan Finley was published by the Detroit News on April 1, 2017.

If real life read more like a Hollywood script, the prison doors would swing open and the wrongly convicted inmate would walk out to freedom as soon as evidence surfaced to prove his innocence.

That’s not how it works in Michigan.

It can take years to undo a bad conviction and unlock the cell door.

Even when physical evidence like DNA and fingerprints is conclusive. Even when witnesses recant their testimony. And even when someone else confesses to the crime.

That shouldn’t be true. Once there is strong evidence to suggest an innocent person might be behind bars, the top priority of the legal system should be determining the legitimacy of the claim and, if it holds up, getting him or her out.

Justice moves slowly for good reasons; both the defendants and prosecutors need adequate time to prepare their cases, and the courts aren’t fast food joints — getting it right takes time.

But when an innocent person is living the nightmare of prison, time matters.

Dave Moran, who directs the University of Michigan Innocence Clinic, says exoneration of the cases he’s been involved in took on average of four years — and that’s after months or years have already been spent gathering and analyzing evidence. The clinic has had some cases take up to nine years to move through the system.


In many instances, getting the evidence requires Freedom of Information Act (FOIA) requests and, if the information isn’t delivered, going to court to get it released. That would be one place to look if the goal is to take time off the process.

The request for a rehearing based on new or re-examined evidence often goes before the same judge who heard the case, and could be handled by the same prosecutor. That creates an environment of defensiveness, a reluctance to see the case in a new light, and an instinct to stall.

Nearly all of the wrongful conviction filings eventually end up in the Court of Appeals, where things really slow down. The cases go to the bottom of the pile and have to work their way to the top.

Expediting the process is not easy, but it is something the Michigan legal system should examine.

Fast-tracking cases where the evidence of wrongful conviction is compelling would be a start.

But first, a process for establishing credibility must be put in place.

I covered prisons early in my career and learned one thing: Everyone in the pen is innocent — according to them. The state would have to be able to separate the seemingly legitimate claims from the obviously frivolous ones.

The state attorney general’s office might be able to do that by setting up a procedure for reviewing the evidence and moving the credible cases onto a fast track. There’s a downside to that approach — if the AG’s office deems a case as illegitimate, it could hurt its chances in the courts.

The appeals courts should treat wrongful conviction claims as they do parental custody cases and give them an expedited timetable.

Beyond that, it’s absolutely essential the courts change absurd rules that allow judges to deny a request for relief if the evidence the appeal is based on was available during the original trial, but not presented. There are a lot of reasons evidence and testimony might have been held back.

There are no good reasons for keeping the wrong person locked up based on a technicality.

It should bother us all to know there are innocent people rotting away in our prisons. With a turn of fate, that could be you or me. If there are things we can do to right this wrong, we should be all over them.

nfinley@detroitnews.com

Wednesday, March 22, 2017

The Abortion of Justice Suffered by Innocent Prisoners

The following opinion by Lorenzo Johnson was published by the Huffington Post on March 20, 2016.

Is society surprised that, for the third straight year, a record number of exonerations have occurred—166 in 2016? Or have innocent prisoners become the norm? It’s great that some of us are being exonerated, but what does this say about our criminal justice system as a whole—and therefore about how many innocent prisoners are not being exonerated?

Once again, another record has been set in dealing with official misconduct. The sad thing is, society has no inkling of how the same prosecutors who are responsible for these wrongful convictions fight so hard to maintain their false convictions knowingly and intentionally. Take note, in these exonerations, of how many (if any) of these prosecutors admitted to their wrongdoing or apologized to the innocent prisoner.

Since 2011, the numbers for exonerations have steadily climbed higher and higher each year. As a matter of fact, the record number of exonerations in 2016 doubled the number in 2011. The National Registry of Exonerations stated in their 2016 Report:

The exonerations in 2016 set several other records as well. They include more cases than any previous year in which: Government Officials committed Misconduct; The convictions were based on Guilty Pleas; No crime actually occurred; or a prosecutorial Conviction Integrity Unit worked on the exoneration.

As an innocent prisoner, my wrongful conviction stemmed and continues from official misconduct, ranging from police threatening/pressuring witnesses to prosecutors withholding exculpatory evidence of my innocence. My appeal has been “slow walked” because I’ve been vocal about my injustice. I guess they wanted me to sit in this cell and be quiet and serve a life sentence for a crime I never committed? Not going to happen.

In 2016 it was an average of three innocent prisoners being exonerated every week. But, in reality, these numbers do not scratch the surface of us innocent prisoners waiting to be freed. The only way to help seriously curb our injustices is to hold the officials criminally responsible once they’re found guilty of knowingly and intentionally convicting an innocent person.

A day in prison for an innocent prisoner is too long. But it takes an average of 13½-15 years for exonerees to get their freedom. I ask society, please help change our current reality.

Lorenzo Johnson served 16 and a half years of a life-without-parole sentence until 2012, when the Third Circuit Federal Court of Appeals ruled there was legally insufficient evidence for his conviction. He remained free for four months, after which the US Supreme Court unanimously reinstated the conviction and ordered him back to prison to resume the sentence. With the support of The Pennsylvania Innocence Project, he is continuing to fight for his freedom. Though he does not have internet access himself, you can email his campaign, make a donation, or sign his petition and learn more at: http://www.freelorenzojohnson.org/sign-the-petition.html.

Monday, March 20, 2017

CYA rules for Wayne County. Michigan prosecutor

The following column by Nolan Finley was published by the Detroit News on March 18, 2017.

Covering your fanny is a natural instinct. No one is crazy about admitting to a big, awful mistake.

But when that error costs someone his freedom, and you’ve sworn yourself to getting justice right, not being able to say “I got it wrong” is more than just a character flaw; it puts you on the wrong side of morality.

That’s where too many prosecutors stand in Michigan, and particularly in Wayne County.

Yet another case is in the news of the Wayne County Prosecutor’s Office clawing to suppress evidence that might exonerate a man convicted of murder and locked up since 1992.

Desmond Ricks contends Detroit police framed him by switching out the bullets found in the murder victim. The ballistics expert who testified against him now concurs, and the University of Michigan’s Innocence Clinic found the evidence compelling enough to take the case.

I don’t know if Ricks is innocent. But I do know that when presented with the credible evidence that he might be, the response from Wayne County Prosecutor Kym Worthy should have been to take a hard look with an open mind. Instead, Worthy’s office dismissed the claim outright, according to the Associated Press, as “ingeniously imaginative.”

That might be acceptable were it not for Worthy’s track record. The wrongful conviction claim by Ricks is not a one-off. At least six times in recent years inmates prosecuted by Wayne County have had their convictions overturned after serving long sentences. And in every case Worthy battled till the end to keep them imprisoned.

I asked David Moran, director of the Innocence Clinic, if Wayne County ever admits it made a mistake. “Not to us,” he said.

Moran says some Michigan prosecutors are responsive when a wrongful conviction claim is raised, will look at the evidence and in many cases seek to corroborate it with their own investigation.

He cited as an example former Ionia County Prosecutor Ron Shafer, who, when presented with evidence that a man convicted of killing his wife and two daughters in an arson fire did not commit the crime, signed an order of release that very day.

But that’s not the norm.

“In many prosecutor’s offices, there’s a denialism that a mistake was made,” Moran says. “They are more worried about how the office might look than they are about justice.”

In a highly publicized case last fall, Davontae Sanford, who was locked up at age 14 for murders everyone had to know he didn’t do, won his release. But in an epic example of obstinacy, Worthy still has not charged the person whom the evidence suggests is responsible.

The Innocence Clinic has a dozen more wrongful conviction claims pending in Wayne County. Moran cites the case of Lamarr Monson, who was convicted of murdering a 12-year-old girl in 1996.

Under interrogation, Monson admitted to killing the girl with a knife. Big problem: She was bludgeoned to death with a ceramic toilet tank cover. But Monson was locked up anyway. Police lifted bloody fingerprints from the lid, but couldn’t identify them at the time. Now they can, and they belong to a Pennsylvania man.

“It’s hard to believe (Worthy’s office) wouldn’t be holding a press conference demanding the governor of Pennsylvania extradite him,” Moran says.

Instead, Worthy is hunkering down again, fighting to keep Monson in a cell. “They don’t want to admit they made a mistake 21 years ago,” Moran says.

I don’t know what motivates such stubbornness. But it sure ain’t justice.

nfinley@detroitnews.com

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.