The following editorial was published by the Washington Post on December 27, 2009.
THREE DAYS after Donald E. Gates was released from prison after serving 28 years for a murder he didn't commit, federal prosecutors acknowledged that they received, but failed to act on, information discrediting testimony key to his conviction. In the same week, a Florida man imprisoned for 35 years for kidnapping and rape was freed after DNA tests proved his innocence. As appalling as the two cases are, what's even scarier is the thought that imperfections in the criminal justice system will go uncorrected and more people could be wrongly jailed.
The wrongful conviction of Mr. Gates in the 1981 rape and murder of a D.C. woman and that of James Bain in the 1974 assault of a 9-year-old boy could serve as primers for what's wrong with the system. In Mr. Bain's case, it was reliance on identification from an unreliable eyewitness: a traumatized 9-year-old. Witness misidentification is the single greatest cause of wrongful convictions, contributing to more than 75 percent of convictions overturned through DNA testing nationwide, the Innocence Project reported.
The second biggest cause is faulty forensics, and that played a starring role in Mr. Gates's conviction. A FBI special agent testified that two pubic hairs found on the victim's body were microscopically identical to those of Mr. Gates. Even if, as later examination showed, the agent hadn't basically been making up his findings, the science behind the technology is suspect. Indeed, a report this year from the National Research Council found such serious deficiencies in the nation's forensic science system that it called for major reforms and new research.
It's also clear from Mr. Gates's case that improvements are needed in how the government discloses information. Even after a 1997 inspector general's report questioned the credibility of FBI agent Michael P. Malone, prosecutors were still, as late as this year, touting his findings. Only after the D.C. public defender's office did its own digging were the problems with Mr. Malone's performance, and the government's failure to disclose them, brought to light.
In a letter to the court admitting that they had received information almost six years ago that called Mr. Gates's conviction into doubt, prosecutors at the U.S. Attorney's Office said that they have referred the matter to the Justice Department's Office of Professional Responsibility. They also should follow the lead of states such as North Carolina in establishing innocence commissions that bring together judges, police, prosecutors, defense attorneys and victim's advocates in an attempt to identify the practices that lead to wrongful convictions and to recommend reforms.
Sunday, December 27, 2009
Friday, December 25, 2009
When justice system crashes
The following editorial was published in the Palm Beach (Florida) Post on December 23, 2009.
When justice system crashes
James Bain is enjoying his first Christmas as a free man since 1973, even though for all those years he was an innocent man. Florida must create a commission to investigate such catastrophic failures of the criminal justice system.
In 1974, Mr. Bain was arrested for the kidnap and rape of a 9-year-old boy. Polk County prosecutors got a conviction, despite relying only on what was a very shaky eyewitness identification. Attorneys for The Innocence Project of Florida pressed for DNA testing, which prosecutors rejected several times before agreeing. Results confirmed Mr. Bain's innocence, and he went home last week.
The state owes Mr. Bain $1.75 million, based on $50,000 for each stolen year. The Florida Supreme Court owes it to the state justice system to create an Innocence Commission.
Mr. Bain became just the latest example of system failure. In 2004, it was Wilton Dedge (22 years). In 2005, it was Luis Diaz (26 years). In 2008, it was Alan Crotzer (24 years) and William Dillon (28 years). Then there are the 23 exonerations from Florida's Death Row.
As Innocence Project co-founder Barry Scheck has noted, these cases are to the justice system what a crash is to the airline industry: a tragedy, but also a chance to learn. When a ValuJet plane crashed in the Everglades 13 years ago, for example, we learned the dangers of outsourcing maintenance. Miscommunication led to the storing of full oxygen canisters in the hold. They ignited.
One week before Mr. Bain's release, Talbot "Sandy" D'Alemberte petitioned the Florida Supreme Court to create a Florida Actual Innocence Commission. According to the petition, the commission would "investigate the circumstances of cases where actual innocence of a crime has been demonstrated and to develop recommendations for reforms to reduce wrongful convictions." Mr. D'Alemberte is a former president of the American Bar Association and Florida State University, where he also was law school dean. Joining the petition at this point are roughly 70 lawyers, among them prosecutors and former Florida Supreme Court justices. Fifty are required for the court to consider a petition.
The petition suggests that the court establish a commission modeled after the one in North Carolina. The court has no timetable to decide, but Mark Schlackman, who works with Mr. D'Alemberte at the Florida State University Center for the Advancement of Human Rights, said, "We are very optimistic."
Other studies, one by the ABA in 2006, identified flaws with the state's criminal justice system. When that system gets it so wrong, so badly, so often, the search for justice demands that the system understand why.
When justice system crashes
James Bain is enjoying his first Christmas as a free man since 1973, even though for all those years he was an innocent man. Florida must create a commission to investigate such catastrophic failures of the criminal justice system.
In 1974, Mr. Bain was arrested for the kidnap and rape of a 9-year-old boy. Polk County prosecutors got a conviction, despite relying only on what was a very shaky eyewitness identification. Attorneys for The Innocence Project of Florida pressed for DNA testing, which prosecutors rejected several times before agreeing. Results confirmed Mr. Bain's innocence, and he went home last week.
The state owes Mr. Bain $1.75 million, based on $50,000 for each stolen year. The Florida Supreme Court owes it to the state justice system to create an Innocence Commission.
Mr. Bain became just the latest example of system failure. In 2004, it was Wilton Dedge (22 years). In 2005, it was Luis Diaz (26 years). In 2008, it was Alan Crotzer (24 years) and William Dillon (28 years). Then there are the 23 exonerations from Florida's Death Row.
As Innocence Project co-founder Barry Scheck has noted, these cases are to the justice system what a crash is to the airline industry: a tragedy, but also a chance to learn. When a ValuJet plane crashed in the Everglades 13 years ago, for example, we learned the dangers of outsourcing maintenance. Miscommunication led to the storing of full oxygen canisters in the hold. They ignited.
One week before Mr. Bain's release, Talbot "Sandy" D'Alemberte petitioned the Florida Supreme Court to create a Florida Actual Innocence Commission. According to the petition, the commission would "investigate the circumstances of cases where actual innocence of a crime has been demonstrated and to develop recommendations for reforms to reduce wrongful convictions." Mr. D'Alemberte is a former president of the American Bar Association and Florida State University, where he also was law school dean. Joining the petition at this point are roughly 70 lawyers, among them prosecutors and former Florida Supreme Court justices. Fifty are required for the court to consider a petition.
The petition suggests that the court establish a commission modeled after the one in North Carolina. The court has no timetable to decide, but Mark Schlackman, who works with Mr. D'Alemberte at the Florida State University Center for the Advancement of Human Rights, said, "We are very optimistic."
Other studies, one by the ABA in 2006, identified flaws with the state's criminal justice system. When that system gets it so wrong, so badly, so often, the search for justice demands that the system understand why.
Sunday, December 20, 2009
Where’s the Justice for Wrongly Imprisoned Man?
The following editorial was published by the Jacksonville (FL) Observer on December 18, 2009.
Where’s the justice in this?
Donald Eugene Gates spent 28 years in prison for a crime he didn’t commit. Convicted in 1981 of the brutal rape and murder of Catherine Schilling, a 21-year-old Georgetown University student, Gates got 20 years to life and was sent to federal prison in Arizona.
Gates was released a few days ago after DNA testing proved he didn’t commit that crime. To help him restart his life, the government gave Gates some winter clothes, $75 and a bus ticket to his hometown, Akron, Ohio. The cab ride from the Tucson prison to the Greyhound bus station cost him $35.
Gates was forced to spend nearly half his 58 years behind bars after an FBI crime lab analyst linked two pubic hairs found at the crime scene to Gates. The reliability of that analyst, Michael Malone, was called into question in several subsequent cases.
A 1997 FBI inspector general’s report concluded Malone and other analysts in the bureau’s Washington crime lab had submitted false reports and performed inaccurate tests in criminal cases. In 2003, a forensic scientist found problems with Malone’s work in the Gates case, but prosecutors never gave that information to Gates’ lawyer.
Gates languished in prison for six more years until the District of Columbia’s Public Defenders Service persuaded the judge who had sentenced him to order a DNA test on the pubic hairs. An earlier test, using a less reliable method, had proved inconclusive. The new test exonerated Gates.
Now, with whatever’s left of his $75 from the federal government, Gates is expected to get on with his life.
When he went to prison in 1981, Ronald Reagan was in the first year of his presidency. “Dallas” was the top-rated television show. The Oakland Raiders had won the Super Bowl, and 5-year-old Tiger Woods appeared on the TV show “That’s Incredible.” Motorola didn’t introduce the first commercial cell phone until two years later.
The world Gates has just entered bears little resemblance to the one he left behind after his wrongful conviction. The nature of work – and the skills needed to land a job – have changed dramatically over the past quarter-century. There’s little chance Gates will find a job that will make him self-sufficient without some special training.
And there’s little hope he won’t fall back into the clutches of the criminal justice system if something isn’t done to compensate him for his lost years.
Such an act of contrition shouldn’t be slow in coming.
The District of Columbia allows people who were wrongfully convicted to seek compensation, but why make Gates go through the motions? Why make him get a lawyer and litigate this in court? Why force him to sue for the help he needs to recover from the injustice he’s suffered?
In ordering Gates’ release, D.C. Superior Court Judge Fred Ugast said, “We are fortunate … that the technology has been developed that permits us to at least try to right a wrong.” But while setting Gates free may soothe the judge’s conscience, much more needs to be done to free him from the ravages of his wrongful conviction.
Where’s the justice in this?
Donald Eugene Gates spent 28 years in prison for a crime he didn’t commit. Convicted in 1981 of the brutal rape and murder of Catherine Schilling, a 21-year-old Georgetown University student, Gates got 20 years to life and was sent to federal prison in Arizona.
Gates was released a few days ago after DNA testing proved he didn’t commit that crime. To help him restart his life, the government gave Gates some winter clothes, $75 and a bus ticket to his hometown, Akron, Ohio. The cab ride from the Tucson prison to the Greyhound bus station cost him $35.
Gates was forced to spend nearly half his 58 years behind bars after an FBI crime lab analyst linked two pubic hairs found at the crime scene to Gates. The reliability of that analyst, Michael Malone, was called into question in several subsequent cases.
A 1997 FBI inspector general’s report concluded Malone and other analysts in the bureau’s Washington crime lab had submitted false reports and performed inaccurate tests in criminal cases. In 2003, a forensic scientist found problems with Malone’s work in the Gates case, but prosecutors never gave that information to Gates’ lawyer.
Gates languished in prison for six more years until the District of Columbia’s Public Defenders Service persuaded the judge who had sentenced him to order a DNA test on the pubic hairs. An earlier test, using a less reliable method, had proved inconclusive. The new test exonerated Gates.
Now, with whatever’s left of his $75 from the federal government, Gates is expected to get on with his life.
When he went to prison in 1981, Ronald Reagan was in the first year of his presidency. “Dallas” was the top-rated television show. The Oakland Raiders had won the Super Bowl, and 5-year-old Tiger Woods appeared on the TV show “That’s Incredible.” Motorola didn’t introduce the first commercial cell phone until two years later.
The world Gates has just entered bears little resemblance to the one he left behind after his wrongful conviction. The nature of work – and the skills needed to land a job – have changed dramatically over the past quarter-century. There’s little chance Gates will find a job that will make him self-sufficient without some special training.
And there’s little hope he won’t fall back into the clutches of the criminal justice system if something isn’t done to compensate him for his lost years.
Such an act of contrition shouldn’t be slow in coming.
The District of Columbia allows people who were wrongfully convicted to seek compensation, but why make Gates go through the motions? Why make him get a lawyer and litigate this in court? Why force him to sue for the help he needs to recover from the injustice he’s suffered?
In ordering Gates’ release, D.C. Superior Court Judge Fred Ugast said, “We are fortunate … that the technology has been developed that permits us to at least try to right a wrong.” But while setting Gates free may soothe the judge’s conscience, much more needs to be done to free him from the ravages of his wrongful conviction.
Guest Shot: Eric Schneiderman: NY Bill would let wrongly convicted prove innocence
The following opinion was originally published in the Buffalo News on December 19, 2009.
Another Voice / Criminal justice
Eric Schneiderman: Bill would let wrongly convicted prove innocence
By Eric Schneiderman
December 19, 2009
Three weeks ago, Fernando Bermudez became a free man after serving 18 years in prison for a murder he did not commit. This will be his first Christmas at home since 1991.
A Manhattan judge threw out his conviction after a cooperating witness lied in court, and witnesses were improperly allowed to discuss a mug shot of Bermudez before identifying him as the shooter. Each one has since recanted.
In a powerfully worded decision, Judge John Cataldo found “clear and convincing evidence” that Bermudez demonstrated his “actual innocence.”
This decision represents a major turning point in the actual innocence movement — an effort to make courts weigh convincing evidence of innocence without procedural roadblocks in cases like this. Here in New York, as in most other states, too many technical obstacles are preventing innocent people like Bermudez from getting the justice they deserve. And when an innocent man is sent to prison, the real criminal remains free to terrorize new victims.
To fix this problem, I have introduced a bill in the State Legislature to establish “actual innocence” as a lawful basis for vacating a prior conviction, giving the wrongfully convicted an opportunity to directly prove their innocence.
Innocent people locked up in prison deserve a hearing when they can produce evidence conclusively proving they are not guilty.
This bill prevents the rejection of innocence claims on technicalities. Had this law been in place in the 1990s, it’s possible that Bermudez could have been a free man years ago.
Indeed, his first application to have the court re-examine evidence establishing his innocence — 14 years ago — and nine subsequent applicants were all denied.
Despite the recantation of five witnesses who had previously identified Bermudez as the killer, and the advocacy of many public officials including Assemblyman Adriano Espaillat, Bermudez’s 10 previous attempts to establish his innocence were denied based on a series of technicalities.
This legislation is particularly important in cases like this one, where there is no DNA evidence. In the last five years, approximately 64 percent of all the exonerations in the United States were based on non-DNA evidence.
Experts observe that the percentage of exonerations based on non-DNA evidence in New York State is only increasing.
The Bermudez case is a wake-up call. It is completely inconsistent with American values of justice and fairness to imprison innocent people without giving them a chance to reverse wrongful convictions where convincing evidence exists.
We have the momentum — it’s time to reform our criminal justice system and ensure that no one does time for a crime he didn’t commit.
Eric Schneiderman, D-New York City, representsthe 31st State Senate District.
Another Voice / Criminal justice
Eric Schneiderman: Bill would let wrongly convicted prove innocence
By Eric Schneiderman
December 19, 2009
Three weeks ago, Fernando Bermudez became a free man after serving 18 years in prison for a murder he did not commit. This will be his first Christmas at home since 1991.
A Manhattan judge threw out his conviction after a cooperating witness lied in court, and witnesses were improperly allowed to discuss a mug shot of Bermudez before identifying him as the shooter. Each one has since recanted.
In a powerfully worded decision, Judge John Cataldo found “clear and convincing evidence” that Bermudez demonstrated his “actual innocence.”
This decision represents a major turning point in the actual innocence movement — an effort to make courts weigh convincing evidence of innocence without procedural roadblocks in cases like this. Here in New York, as in most other states, too many technical obstacles are preventing innocent people like Bermudez from getting the justice they deserve. And when an innocent man is sent to prison, the real criminal remains free to terrorize new victims.
To fix this problem, I have introduced a bill in the State Legislature to establish “actual innocence” as a lawful basis for vacating a prior conviction, giving the wrongfully convicted an opportunity to directly prove their innocence.
Innocent people locked up in prison deserve a hearing when they can produce evidence conclusively proving they are not guilty.
This bill prevents the rejection of innocence claims on technicalities. Had this law been in place in the 1990s, it’s possible that Bermudez could have been a free man years ago.
Indeed, his first application to have the court re-examine evidence establishing his innocence — 14 years ago — and nine subsequent applicants were all denied.
Despite the recantation of five witnesses who had previously identified Bermudez as the killer, and the advocacy of many public officials including Assemblyman Adriano Espaillat, Bermudez’s 10 previous attempts to establish his innocence were denied based on a series of technicalities.
This legislation is particularly important in cases like this one, where there is no DNA evidence. In the last five years, approximately 64 percent of all the exonerations in the United States were based on non-DNA evidence.
Experts observe that the percentage of exonerations based on non-DNA evidence in New York State is only increasing.
The Bermudez case is a wake-up call. It is completely inconsistent with American values of justice and fairness to imprison innocent people without giving them a chance to reverse wrongful convictions where convincing evidence exists.
We have the momentum — it’s time to reform our criminal justice system and ensure that no one does time for a crime he didn’t commit.
Eric Schneiderman, D-New York City, representsthe 31st State Senate District.
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