Editorial originally published by the (Madison, WI) Capital Times on September 29, 2010.
We did not fully recognize what a serious mess Attorney General J.B. Van Hollen had created for himself until after our call last week for an independent investigation of Van Hollen’s handling of the Ken Kratz affair. Our editorial questioned why the state’s top law enforcement officer sat for almost a year on information that suggested the Calumet County district attorney, who has announced that he will resign soon, had abused his position by sending sexually aggressive text messages to a domestic violence victim.
Van Hollen’s office was made aware of the concerns regarding Kratz in the fall of 2009, yet the attorney general did not tell the governor, who has the authority to remove “for cause” officials who have engaged in misconduct. Van Hollen’s office also kept the public in the dark about the Kratz matter, despite the fact that the DA’s abusive behavior was of a nature that might reasonably have been expected to be repeated.
Those expectations were confirmed after the veil of official secrecy was finally removed. Other women did indeed come forward with details of similar incidents involving Kratz.
So why did Van Hollen, who before the scandal broke highlighted the support of fellow Republican prosecutor Kratz in his campaigns against Democratic foes, preside over an investigation that was opened and closed within days and that did not even question Kratz? And why did the attorney general then fail to take the necessary steps to ensure that the DA would not harass other women?
We began asking these questions in an editorial last week, which suggested that the attorney general should, for the sake of his own reputation and that of his office, invite an independent investigation of his handling of the Kratz scandal.
We, of course, pointed out that Van Hollen enjoyed the presumption of innocence. But we argued that, as the state’s chief law enforcement officer, the attorney general has a higher responsibility to ensure that questions about his conduct -- especially when it involves issues as important as the protection of domestic abuse victims -- are resolved.
Van Hollen’s response was to try to claim he had done everything by the book.
Even though his spokesman had just hours earlier suggested that Van Hollen was not personally involved, the attorney general went on television to do an interview in which he suggested that he had led a full-court press on the case that involved “dozens” of his staffers. At the same time, he tried to blame other agencies for failing to act.
In fact, Van Hollen seemed to be pointing the finger at everyone but himself. He even engaged in the classic politician’s move of claiming that he had kept the Kratz information secret in order to avoid jeopardizing the legal proceedings related to the domestic violence case in question. The only problem is that the case was resolved in April -- meaning that Van Hollen sat on the information for five months after his excuse for keeping it secret had disappeared.
Bizarrely, Van Hollen claimed credit for arranging for Kratz to quietly report his conduct to the Office of Lawyer Regulation, which is supposed to investigate and discipline attorneys. The office just as quietly found no grounds for acting against Kratz.
Van Hollen is now criticizing the Office of Lawyer Regulation for laxness, but that accusation applies to the attorney general himself as well as the OLR. Van Hollen’s excuses are as unsatisfying as they are self-serving.
That is why we called for an independent investigation.
And, of course, that is also why Van Hollen is now attacking us. His claim is that our call for an independent inquiry is nothing more than an embrace of partisan criticism.
Politicians of both parties, when they get in trouble, have attacked The Capital Times since the paper was founded as an independent progressive voice in 1917. That’s because politicians don’t like to be held to account. Democratic Attorney General Bronson La Follette didn’t like it when we led the chorus that questioned his management of the Department of Justice. Democratic Attorney General Jim Doyle didn’t like it when we went after him for what looked to us like inappropriate fundraising. Now Republican Van Hollen doesn’t like it when we say that an independent inquiry is needed to resolve questions about his handling of the Kratz case.
Over the years we have complimented and criticized Van Hollen. In 2006, he met with our editorial board and sought our endorsement, and we wrote well of him. We have praised him since his election, and we will do so again whenever his actions merit plaudits.
But it has long been the position of this newspaper that the office of state attorney general must always be recognized as independent and credible. Van Hollen’s handling of the Kratz case has raised questions not merely about him, but about the independence and credibility of the Department of Justice.
Van Hollen cannot talk his way out of trouble. He needs to accept that an independent inquiry is called for, and the sooner he accepts that, the better -- for Van Hollen and for the Department of Justice.
Wednesday, September 29, 2010
Sunday, September 26, 2010
The Honorable Robert E. O’Neill Regrets That He is Unable to Answer Questions from the Audience
by James Scanlan, Esq.
In Truth in Justice editorials of June 23, July 11, August 17, and September 4, 2010, I have discussed Robert E. O’Neill, nominee for US Attorney for the Middle District of Florida. O’Neill is the prosecutor who lied on the US Attorney application he submitted to the Florida Federal Judicial Nominating Commission. In an apparent effort to minimize a District of Columbia Office of Bar Counsel investigation of his conduct in US v. Dean, O’Neill attributed the initiation of the investigation to a complaint filed by the defendant. In fact, the investigation was self-initiated by Bar Counsel after reading a court of appeals opinion “deplor[ing]” O’Neill’s conduct. Very likely, by making that false attribution before the Nominating Commission or at some other point in the vetting process O’Neill violated 18 U.S.C. § 1001. On September 23, 2010, despite having been repeatedly made aware of this and other matters calling O’Neill’s integrity into question, the Senate Judiciary Committee unanimously, and without discussion, favorably reported O’Neill’s nomination to the Senate floor. Typically this would mean that O’Neill shortly will be confirmed by the entire Senate – perhaps again unanimously.
This will by no means be a good thing for the country or the Middle District of Florida, and some fine and principled people in the US Attorney’s office are greatly distressed at the prospect of serving under a US Attorney of such doubtful character. But it is an ill wind that blows no one any good. Since 2008, I have devoted considerable effort to publicizing what I maintain is unconscionable conduct of O’Neill and other prosecutors in the Dean case (including Bruce C. Swartz, a principal subject of the September 4 editorial) and the Department of Justice’s manner of addressing (or involvement with) that conduct. Though I wrote letters to the Nominating Commission opposing O’Neill’s candidacy, as regards my efforts to secure widespread attention to O’Neill’s conduct, the President did me a great service by nominating O’Neill. O’Neill himself, by lying on his application, did me a similar service. Prior to the nomination, a Google search for “’Robert E. O’Neill’” did not yield the on-line profile I maintain on him until after the 40th result. For some time now, however, it has been the first result and hence, along with my editorials here and Paul Mirengoff’s on powerlineblog.com, is among the public’s readiest sources of information on O’Neill’s character and background.
My editorials and the materials discussed in Addendum 7 to the O’Neill profile hardly reflect a half-hearted effort to prevent O’Neill’s confirmation. But I have to recognize that O’Neill’s prominence as US Attorney for the next two or six years will substantially increase my ability to publicize in various mediums my vision of O’Neill’s character and conduct. And, of course, if this appointment should prove to be a stepping-stone to higher position such as US Senator or Florida Governor – both real possibilities – prospects for securing attention to that vision will be further enhanced.
Moreover, while O’Neill’s appointment will be saddening enough to people who like to believe in the processes of government, aspects of those processes have made O’Neill’s story more interesting and their exposure will serve the public interest. Section B.8 of the main Prosecutorial Misconduct page of jpscanlan.com presents an unflattering picture of the Department of Justice, whose handling of allegations against O’Neill when first brought to its attention in December 1994 may well have been influenced by the fact that O’Neill was in large part carrying out a scheme of deceit initially undertaken by the person who in December 1994 was Assistant Attorney General for the Criminal Division.
As discussed in the September 4 editorial, the Department’s recent actions regarding O’Neill – including the refusal by Jay Macklin, General Counsel for the Executive Office for United States Attorneys, to consider the allegation that O’Neill lied on his Nominating Commission application and during the vetting process because of the transparently inapplicable policy of not investigating matters that could have been raised in litigation – further illustrate the lengths to which the Department will go to avoid addressing disagreeable ethical issues concerning its high officials. One wonders whether Macklin, who will supervise O’Neill as US Attorney, will similarly disregard the evidence of O’Neill’s untrustworthiness when judging O’Neill’s candor in their official interactions.
In the Senate Judiciary Committee, while there was no specific discussion of allegations against O’Neill, in evident allusion thereto both Chairman Patrick J. Leahy and ranking Republican Jeff Sessions briefly mentioned that allegations against a US Attorney or Marshal nominee are carefully considered. In doing so, Leahy cited as an example an allegation that a nominee was involved in a bank robbery. Thus, rather in the manner in which O’Neill minimized the DC Bar Counsel investigation by falsely attributing it to a complaint filed by a convicted defendant, Leahy presumably chose that unlikely example because he believed it would raise fewer concerns than mention of allegations that the nominee – to take as examples just two matters that are in no way open to question – lied on his application or had been the subject of severe criticism by two courts. For his part, Sessions explained that the Committee made sure that “no serious meritorious complaints had been made.” It is hard to know whether Sessions meant that allegations to which he alluded were not meritorious or not serious. But neither meaning could withstand the light of day with regard either to the matters just mentioned or the more serious matters described in my letter to the Committee of June 16, 2010. At any rate, it is fitting enough that in approving the nomination for US Attorney of an individual known to have lied on his application, so eminent a body as the Senate Judiciary Committee would itself act disingenuously and do so in an uncommon exhibition of bipartisanship.
Assuming he is confirmed, O’Neill’s tenure ought to be an interesting one. For even had O’Neill never otherwise done anything unethical, the incongruity of there being a high law enforcement official who is known to have lied on his application is manifest. The July 11 editorial treats the false statement in the context of O’Neill’s tactic of calling defendants and witnesses liars and his even causing a government agent to give misleading testimony in order that O’Neill could lead a jury falsely to believe that a defendant lied about an interaction with the agent (see Addendum 1 below). The July 11 item highlights O’Neill’s “a liar is a liar” remark in US v. Spellissy, by which he meant that someone who lies about one thing cannot be trusted as to anything else. The quoted phrase implicates an additional irony. For those five words have been previously used in an observation by Tennessee Williams, to wit: “The only thing worse than a liar is a liar that’s also a hypocrite.”
There are enough people in the Middle District of Florida who do not like O’Neill for good or bad reasons that one day that editorial may be distributed at the venue of an O’Neill speech. Or at least someone in the audience is going to ask: “Is it true that you lied on your US Attorney application?” O’Neill may find it sensible to avoid such circumstances.
Addendum 1: I have lately given great attention to the false statement on O’Neill’s application because of the simplicity of the matter and because it cannot be disputed. But I do not want readers to lose sight of larger issues, such as O’Neill’s conduct regarding Supervisory Special Agent Alvin R. Cain, Jr., alluded to above and addressed in the September 4 editorial and varied other places. For there is conduct like lying on an application that ought to disqualify an individual from a high law enforcement position and there is conduct that takes one's breath away. Put another way, there are hypocrites and there are monsters.
Addendum 2: In the September 4 editorial, I suggested that the actions of Bruce C. Swartz (currently Deputy Assistant Attorney General in the Criminal Division in charge of international issues) in responding to allegations of prosecutorial abuse in the Dean case could serve as a case study of impermissible evasions and deceptions by prosecutors accused of misconduct. In Addendum 7 to the Bruce C. Swartz profile I have elaborated further on that proposition while suggesting ways to ensure that responses to misconduct allegations are truthful. In doing so, I point out an instance of a representation made on behalf of Swartz and O’Neill in defending themselves in the DC Bar Counsel investigation. Suffice it that it is a representation that no rational person would believe. Perhaps it will eventually be possible to present the full scope of the efforts to deceive Bar Counsel in the investigation that O’Neill falsely attributed to a complaint filed by the defendant.
In Truth in Justice editorials of June 23, July 11, August 17, and September 4, 2010, I have discussed Robert E. O’Neill, nominee for US Attorney for the Middle District of Florida. O’Neill is the prosecutor who lied on the US Attorney application he submitted to the Florida Federal Judicial Nominating Commission. In an apparent effort to minimize a District of Columbia Office of Bar Counsel investigation of his conduct in US v. Dean, O’Neill attributed the initiation of the investigation to a complaint filed by the defendant. In fact, the investigation was self-initiated by Bar Counsel after reading a court of appeals opinion “deplor[ing]” O’Neill’s conduct. Very likely, by making that false attribution before the Nominating Commission or at some other point in the vetting process O’Neill violated 18 U.S.C. § 1001. On September 23, 2010, despite having been repeatedly made aware of this and other matters calling O’Neill’s integrity into question, the Senate Judiciary Committee unanimously, and without discussion, favorably reported O’Neill’s nomination to the Senate floor. Typically this would mean that O’Neill shortly will be confirmed by the entire Senate – perhaps again unanimously.
This will by no means be a good thing for the country or the Middle District of Florida, and some fine and principled people in the US Attorney’s office are greatly distressed at the prospect of serving under a US Attorney of such doubtful character. But it is an ill wind that blows no one any good. Since 2008, I have devoted considerable effort to publicizing what I maintain is unconscionable conduct of O’Neill and other prosecutors in the Dean case (including Bruce C. Swartz, a principal subject of the September 4 editorial) and the Department of Justice’s manner of addressing (or involvement with) that conduct. Though I wrote letters to the Nominating Commission opposing O’Neill’s candidacy, as regards my efforts to secure widespread attention to O’Neill’s conduct, the President did me a great service by nominating O’Neill. O’Neill himself, by lying on his application, did me a similar service. Prior to the nomination, a Google search for “’Robert E. O’Neill’” did not yield the on-line profile I maintain on him until after the 40th result. For some time now, however, it has been the first result and hence, along with my editorials here and Paul Mirengoff’s on powerlineblog.com, is among the public’s readiest sources of information on O’Neill’s character and background.
My editorials and the materials discussed in Addendum 7 to the O’Neill profile hardly reflect a half-hearted effort to prevent O’Neill’s confirmation. But I have to recognize that O’Neill’s prominence as US Attorney for the next two or six years will substantially increase my ability to publicize in various mediums my vision of O’Neill’s character and conduct. And, of course, if this appointment should prove to be a stepping-stone to higher position such as US Senator or Florida Governor – both real possibilities – prospects for securing attention to that vision will be further enhanced.
Moreover, while O’Neill’s appointment will be saddening enough to people who like to believe in the processes of government, aspects of those processes have made O’Neill’s story more interesting and their exposure will serve the public interest. Section B.8 of the main Prosecutorial Misconduct page of jpscanlan.com presents an unflattering picture of the Department of Justice, whose handling of allegations against O’Neill when first brought to its attention in December 1994 may well have been influenced by the fact that O’Neill was in large part carrying out a scheme of deceit initially undertaken by the person who in December 1994 was Assistant Attorney General for the Criminal Division.
As discussed in the September 4 editorial, the Department’s recent actions regarding O’Neill – including the refusal by Jay Macklin, General Counsel for the Executive Office for United States Attorneys, to consider the allegation that O’Neill lied on his Nominating Commission application and during the vetting process because of the transparently inapplicable policy of not investigating matters that could have been raised in litigation – further illustrate the lengths to which the Department will go to avoid addressing disagreeable ethical issues concerning its high officials. One wonders whether Macklin, who will supervise O’Neill as US Attorney, will similarly disregard the evidence of O’Neill’s untrustworthiness when judging O’Neill’s candor in their official interactions.
In the Senate Judiciary Committee, while there was no specific discussion of allegations against O’Neill, in evident allusion thereto both Chairman Patrick J. Leahy and ranking Republican Jeff Sessions briefly mentioned that allegations against a US Attorney or Marshal nominee are carefully considered. In doing so, Leahy cited as an example an allegation that a nominee was involved in a bank robbery. Thus, rather in the manner in which O’Neill minimized the DC Bar Counsel investigation by falsely attributing it to a complaint filed by a convicted defendant, Leahy presumably chose that unlikely example because he believed it would raise fewer concerns than mention of allegations that the nominee – to take as examples just two matters that are in no way open to question – lied on his application or had been the subject of severe criticism by two courts. For his part, Sessions explained that the Committee made sure that “no serious meritorious complaints had been made.” It is hard to know whether Sessions meant that allegations to which he alluded were not meritorious or not serious. But neither meaning could withstand the light of day with regard either to the matters just mentioned or the more serious matters described in my letter to the Committee of June 16, 2010. At any rate, it is fitting enough that in approving the nomination for US Attorney of an individual known to have lied on his application, so eminent a body as the Senate Judiciary Committee would itself act disingenuously and do so in an uncommon exhibition of bipartisanship.
Assuming he is confirmed, O’Neill’s tenure ought to be an interesting one. For even had O’Neill never otherwise done anything unethical, the incongruity of there being a high law enforcement official who is known to have lied on his application is manifest. The July 11 editorial treats the false statement in the context of O’Neill’s tactic of calling defendants and witnesses liars and his even causing a government agent to give misleading testimony in order that O’Neill could lead a jury falsely to believe that a defendant lied about an interaction with the agent (see Addendum 1 below). The July 11 item highlights O’Neill’s “a liar is a liar” remark in US v. Spellissy, by which he meant that someone who lies about one thing cannot be trusted as to anything else. The quoted phrase implicates an additional irony. For those five words have been previously used in an observation by Tennessee Williams, to wit: “The only thing worse than a liar is a liar that’s also a hypocrite.”
There are enough people in the Middle District of Florida who do not like O’Neill for good or bad reasons that one day that editorial may be distributed at the venue of an O’Neill speech. Or at least someone in the audience is going to ask: “Is it true that you lied on your US Attorney application?” O’Neill may find it sensible to avoid such circumstances.
Addendum 1: I have lately given great attention to the false statement on O’Neill’s application because of the simplicity of the matter and because it cannot be disputed. But I do not want readers to lose sight of larger issues, such as O’Neill’s conduct regarding Supervisory Special Agent Alvin R. Cain, Jr., alluded to above and addressed in the September 4 editorial and varied other places. For there is conduct like lying on an application that ought to disqualify an individual from a high law enforcement position and there is conduct that takes one's breath away. Put another way, there are hypocrites and there are monsters.
Addendum 2: In the September 4 editorial, I suggested that the actions of Bruce C. Swartz (currently Deputy Assistant Attorney General in the Criminal Division in charge of international issues) in responding to allegations of prosecutorial abuse in the Dean case could serve as a case study of impermissible evasions and deceptions by prosecutors accused of misconduct. In Addendum 7 to the Bruce C. Swartz profile I have elaborated further on that proposition while suggesting ways to ensure that responses to misconduct allegations are truthful. In doing so, I point out an instance of a representation made on behalf of Swartz and O’Neill in defending themselves in the DC Bar Counsel investigation. Suffice it that it is a representation that no rational person would believe. Perhaps it will eventually be possible to present the full scope of the efforts to deceive Bar Counsel in the investigation that O’Neill falsely attributed to a complaint filed by the defendant.
Tuesday, September 21, 2010
Anatomy of a Misdiagnosis
The following op-ed was published in the Los Angeles Times on September 20, 2010.
Anatomy of a Misdiagnosis
By DEBORAH TUERKHEIMER
A WOMAN calls 911 to report that a baby in her care has gone limp. Rescue workers respond immediately, but the infant dies that night. Though there are no external injuries or witnesses to any abuse, a jury convicts the woman of shaking the baby to death.
More than 1,000 babies a year in the United States are given a diagnosis of shaken baby syndrome. And since the early 1990s, many hundreds of people — mothers, fathers and babysitters — have been imprisoned on suspicion of murder by shaking. The diagnosis is so rooted in the public consciousness that, this year, the Senate unanimously declared the third week of April “National Shaken Baby Syndrome Awareness Week.”
Yet experts are questioning the scientific basis for shaken baby syndrome. Increasingly, it appears that a good number of the people charged with and convicted of homicide may be innocent.
For the past 30 years, doctors have diagnosed the syndrome on the basis of three key symptoms known as the “triad”: retinal hemorrhages, bleeding around the brain and brain swelling. The presence of these three signs (and sometimes just one or two of them) has long been assumed to establish beyond a reasonable doubt that the person who was last taking care of the baby shook him so forcefully as to fatally injure his brain.
But closer scrutiny of the body of research that is said to support the diagnosis of shaken baby syndrome has revealed methodological shortcomings. Scientists are now willing to accept that the symptoms once equated with shaking can be caused in other ways. Indeed, studies of infants’ brains using magnetic resonance imaging have revealed that triad symptoms sometimes exist in infants who have not suffered injuries caused by abuse. Bleeding in the brain can have many causes, including a fall, an infection, an illness like sickle-cell anemia or birth trauma.
What’s more, doctors have learned that in many cases in which infants have triad symptoms, there can be a lag of hours or even days between the time of the injury and the point when the baby loses consciousness. This contradicts the idea that it’s possible to identify the person responsible by looking to the baby’s most recent caregiver.
Last year, the American Academy of Pediatrics recommended that the diagnosis of shaken baby syndrome be discarded and replaced with “abusive head trauma,” which does not imply that only shaking could have caused the injury.
The new understanding of this diagnosis has only just begun to penetrate the legal realm. In 2008, a Wisconsin appeals court recognized that “a shift in mainstream medical opinion” had eroded the medical basis of shaken baby syndrome. The court granted a new trial to Audrey Edmunds, herself a mother of three, who had spent a decade in prison for murdering an infant in her care. Prosecutors later dismissed all charges.
Troublingly, though, Ms. Edmunds’s case has been a rare exception. Most shaken baby convictions have yet to be revisited. New cases are still being prosecuted based on the outdated science.
Despite the shift in scientific consensus, debate about the legitimacy of the shaken baby syndrome diagnosis continues. Some scientists point to studies using dummies modeled on the anatomy of infants as evidence that shaking cannot possibly generate sufficient force to cause the triad of symptoms — or that it could not do so without also causing injury to the infant’s neck or spinal cord. But others challenge the validity of these studies and maintain the belief that shaking alone can (though it need not) cause the triad.
What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study.
In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States.
For decades, shaken baby syndrome has been, in essence, a medical diagnosis of murder. But going forward, prosecutors, judges and juries should exercise greater skepticism. The triad of symptoms alone cannot prove beyond a reasonable doubt that an infant has been fatally shaken.
Deborah Tuerkheimer, a professor of law at DePaul University, is a former assistant district attorney in Manhattan.
Anatomy of a Misdiagnosis
By DEBORAH TUERKHEIMER
A WOMAN calls 911 to report that a baby in her care has gone limp. Rescue workers respond immediately, but the infant dies that night. Though there are no external injuries or witnesses to any abuse, a jury convicts the woman of shaking the baby to death.
More than 1,000 babies a year in the United States are given a diagnosis of shaken baby syndrome. And since the early 1990s, many hundreds of people — mothers, fathers and babysitters — have been imprisoned on suspicion of murder by shaking. The diagnosis is so rooted in the public consciousness that, this year, the Senate unanimously declared the third week of April “National Shaken Baby Syndrome Awareness Week.”
Yet experts are questioning the scientific basis for shaken baby syndrome. Increasingly, it appears that a good number of the people charged with and convicted of homicide may be innocent.
For the past 30 years, doctors have diagnosed the syndrome on the basis of three key symptoms known as the “triad”: retinal hemorrhages, bleeding around the brain and brain swelling. The presence of these three signs (and sometimes just one or two of them) has long been assumed to establish beyond a reasonable doubt that the person who was last taking care of the baby shook him so forcefully as to fatally injure his brain.
But closer scrutiny of the body of research that is said to support the diagnosis of shaken baby syndrome has revealed methodological shortcomings. Scientists are now willing to accept that the symptoms once equated with shaking can be caused in other ways. Indeed, studies of infants’ brains using magnetic resonance imaging have revealed that triad symptoms sometimes exist in infants who have not suffered injuries caused by abuse. Bleeding in the brain can have many causes, including a fall, an infection, an illness like sickle-cell anemia or birth trauma.
What’s more, doctors have learned that in many cases in which infants have triad symptoms, there can be a lag of hours or even days between the time of the injury and the point when the baby loses consciousness. This contradicts the idea that it’s possible to identify the person responsible by looking to the baby’s most recent caregiver.
Last year, the American Academy of Pediatrics recommended that the diagnosis of shaken baby syndrome be discarded and replaced with “abusive head trauma,” which does not imply that only shaking could have caused the injury.
The new understanding of this diagnosis has only just begun to penetrate the legal realm. In 2008, a Wisconsin appeals court recognized that “a shift in mainstream medical opinion” had eroded the medical basis of shaken baby syndrome. The court granted a new trial to Audrey Edmunds, herself a mother of three, who had spent a decade in prison for murdering an infant in her care. Prosecutors later dismissed all charges.
Troublingly, though, Ms. Edmunds’s case has been a rare exception. Most shaken baby convictions have yet to be revisited. New cases are still being prosecuted based on the outdated science.
Despite the shift in scientific consensus, debate about the legitimacy of the shaken baby syndrome diagnosis continues. Some scientists point to studies using dummies modeled on the anatomy of infants as evidence that shaking cannot possibly generate sufficient force to cause the triad of symptoms — or that it could not do so without also causing injury to the infant’s neck or spinal cord. But others challenge the validity of these studies and maintain the belief that shaking alone can (though it need not) cause the triad.
What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study.
In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States.
For decades, shaken baby syndrome has been, in essence, a medical diagnosis of murder. But going forward, prosecutors, judges and juries should exercise greater skepticism. The triad of symptoms alone cannot prove beyond a reasonable doubt that an infant has been fatally shaken.
Deborah Tuerkheimer, a professor of law at DePaul University, is a former assistant district attorney in Manhattan.
Saturday, September 04, 2010
Doubtful Progress on Professional Responsibility at DOJ
by James Scanlan, J.D.
When the Department of Justice had to have the conviction of the late Senator Ted Stevens overturned, Attorney General Eric H. Holder, Jr. spoke as if he intended to make prosecutorial integrity a Department priority and immediately appointed new heads of the Office of Professional Responsibility (OPR) and the Public Integrity Section of the Criminal Division. But there yet is little evidence that the Department actually understands the basic obligations of a prosecutorial authority and some evidence that it does not.
My July 11, 2010 editorial here regarding US Attorney nominee Robert E. O’Neill touched upon a particularly egregious prosecutorial abuse in United States v. Dean. The matter is discussed in Sections B.1 and B.1a of my Prosecutorial Misconduct page and Section B of the Robert E. O’Neill profile and Sections A and E and Addendums 3 and 4 of a similar profile on Bruce C. Swartz . O’Neill and Swartz pressured a government agent into giving misleading testimony in order that O’Neill could lead the jury falsely to believe that the defendant lied about a conversation with the agent. The idea was that the agent’s testimony that seemed to directly contradict the defendant would be literally true because it technically applied to a different date from that given by the defendant. O’Neill’s repeated emphasis of the agent’s testimony in provocatively asserting that the defendant lied on the stand may have had a substantial impact on the outcome of the trial.
In a post-trial motion alleging pervasive prosecutorial abuse, the defendant maintained that the agent committed perjury and that prosecutors knew or should have known that he did. Swartz, who defended against the allegation, did not have the temerity to advance the literal truth rationale to the court, which almost overturned the verdict because of other identified prosecutor misconduct. Instead, Swartz sought to cover up his own and O’Neill’s actions by leading the court to believe that the testimonies were irreconcilable and that the agent told the truth while the defendant lied. As part of an aggressive strategy in this regard, Swartz even tried to have the defendant’s sentence increased by six months for lying about the conversation. In seeking to prevent discovery into the matter, Swartz and those aiding him may have engaged in a conspiracy to obstruct of justice. In any case, several aspects of prosecutor conduct in the matter must be considered heinous.
Since at least 2001 Swartz has been a Deputy Assistant Attorney General in the Criminal Division in charge of international issues, with duties that include interacting with foreign governments on counterterrorism and criminal justice issues. But when last year I brought to the Department’s attention that Swartz’s actions in the Dean case indicated that he was unfit to represent the United States, the Department refused even to consider whether my allegations were true, stating that is was OPR policy not to investigate matters that were or could have been raised in litigation.
More recently, Jay Macklin, General Counsel of the Executive Office for United States Attorneys, even relied on this policy as a basis for refusing to consider whether O’Neill’s June 2009 false statement on his US Attorney application (a subject of editorials here dated June 23, 2010, July 11, 2010, and August 17, 2010) should cause O’Neill to be removed from his current position as Chief of the Criminal Division of the US Attorney’s Office in the Middle District of Florida. Quite obviously, O’Neill’s false statement on his application is not a matter that was or could have been raised in litigation (save in a prosecution of O’Neill), as discussed in my August 18, 2010 letter to Macklin and Holder. So blatant a reliance on an inapplicable policy to ignore a false statement by a high-level prosecutor and US Attorney nominee may reveal much about the Department’s willingness to address disagreeable integrity issues arising within its ranks, as will a failure of the Department to advise the President to withdraw the O’Neill nomination.
My January 15, 2010 letter to OPR Deputy Counsel Judith B. Wish addresses reasons that the stated OPR policy is misguided even as to matters that in fact were or could have been raised in litigation. The policy treats prosecutorial abuses as matters solely to be revealed by defense counsel and courts and ignores the Department’s own obligation to advise courts of prosecutorial abuses regardless of whether a defendant was able to effectively expose them. And, as illustrated with regard to Swartz and O’Neill, it ignores Department obligations to ensure the trustworthiness of persons who represent it internationally or domestically. In any event, continuation of the policy is inconsistent with a commitment to ensuring the integrity of federal prosecutions or the essential honesty of Department attorneys.
But there is another, somewhat ironical, indication of the Department’s failure to grasp certain fundamentals. In October 2009, Holder announced the creation of professional responsibility award, which will first be presented in October 2010. According special recognition to government attorneys for demonstrating professional responsibility – as if there existed levels at which government attorneys fulfill their ethical obligations – hardly suggests a refined understanding of the standards of conduct citizens have a right to expect from all government attorneys. Yet presumably some number of high-level Department officials agreed that the award would at least enhance the Department’s image if not actually improve ethical standards. Given that countless Department attorneys will appreciate the incongruity of what in effect is an award for being honest, there is some prospect that even within the Department the award will eventually be a subject of derision.
In any case, more useful than a dubious decoration for professional responsibility would be firm requirements as to the manner in which prosecutors respond to allegations of misconduct, including that they must provide the unalloyed truth about what they did and why they did it, and that they must do so in affidavits. For purposes of illustrating the impermissible deceptions or evasions in prosecutor responses to misconduct allegations, the Department will find a useful case study in the actions of Bruce C. Swartz detailed in his profile page and the materials it references. The Department should also abrogate the OPR policy that causes conduct of O’Neill and Swartz in the Dean case still to go unexamined and otherwise make clear, not only that surviving court scrutiny of allegations of abuse will not end a matter, but that deceiving a court in responding to such allegations is itself a serious abuse if not also a crime.
See also discussion of Attorney General Janet Reno’s 1994 ethics initiative in Section B.8 of my Prosecutorial Misconduct page and the profile page on Jo Ann Harris, the person who first hired Bruce C. Swartz into the Criminal Division.
When the Department of Justice had to have the conviction of the late Senator Ted Stevens overturned, Attorney General Eric H. Holder, Jr. spoke as if he intended to make prosecutorial integrity a Department priority and immediately appointed new heads of the Office of Professional Responsibility (OPR) and the Public Integrity Section of the Criminal Division. But there yet is little evidence that the Department actually understands the basic obligations of a prosecutorial authority and some evidence that it does not.
My July 11, 2010 editorial here regarding US Attorney nominee Robert E. O’Neill touched upon a particularly egregious prosecutorial abuse in United States v. Dean. The matter is discussed in Sections B.1 and B.1a of my Prosecutorial Misconduct page and Section B of the Robert E. O’Neill profile and Sections A and E and Addendums 3 and 4 of a similar profile on Bruce C. Swartz . O’Neill and Swartz pressured a government agent into giving misleading testimony in order that O’Neill could lead the jury falsely to believe that the defendant lied about a conversation with the agent. The idea was that the agent’s testimony that seemed to directly contradict the defendant would be literally true because it technically applied to a different date from that given by the defendant. O’Neill’s repeated emphasis of the agent’s testimony in provocatively asserting that the defendant lied on the stand may have had a substantial impact on the outcome of the trial.
In a post-trial motion alleging pervasive prosecutorial abuse, the defendant maintained that the agent committed perjury and that prosecutors knew or should have known that he did. Swartz, who defended against the allegation, did not have the temerity to advance the literal truth rationale to the court, which almost overturned the verdict because of other identified prosecutor misconduct. Instead, Swartz sought to cover up his own and O’Neill’s actions by leading the court to believe that the testimonies were irreconcilable and that the agent told the truth while the defendant lied. As part of an aggressive strategy in this regard, Swartz even tried to have the defendant’s sentence increased by six months for lying about the conversation. In seeking to prevent discovery into the matter, Swartz and those aiding him may have engaged in a conspiracy to obstruct of justice. In any case, several aspects of prosecutor conduct in the matter must be considered heinous.
Since at least 2001 Swartz has been a Deputy Assistant Attorney General in the Criminal Division in charge of international issues, with duties that include interacting with foreign governments on counterterrorism and criminal justice issues. But when last year I brought to the Department’s attention that Swartz’s actions in the Dean case indicated that he was unfit to represent the United States, the Department refused even to consider whether my allegations were true, stating that is was OPR policy not to investigate matters that were or could have been raised in litigation.
More recently, Jay Macklin, General Counsel of the Executive Office for United States Attorneys, even relied on this policy as a basis for refusing to consider whether O’Neill’s June 2009 false statement on his US Attorney application (a subject of editorials here dated June 23, 2010, July 11, 2010, and August 17, 2010) should cause O’Neill to be removed from his current position as Chief of the Criminal Division of the US Attorney’s Office in the Middle District of Florida. Quite obviously, O’Neill’s false statement on his application is not a matter that was or could have been raised in litigation (save in a prosecution of O’Neill), as discussed in my August 18, 2010 letter to Macklin and Holder. So blatant a reliance on an inapplicable policy to ignore a false statement by a high-level prosecutor and US Attorney nominee may reveal much about the Department’s willingness to address disagreeable integrity issues arising within its ranks, as will a failure of the Department to advise the President to withdraw the O’Neill nomination.
My January 15, 2010 letter to OPR Deputy Counsel Judith B. Wish addresses reasons that the stated OPR policy is misguided even as to matters that in fact were or could have been raised in litigation. The policy treats prosecutorial abuses as matters solely to be revealed by defense counsel and courts and ignores the Department’s own obligation to advise courts of prosecutorial abuses regardless of whether a defendant was able to effectively expose them. And, as illustrated with regard to Swartz and O’Neill, it ignores Department obligations to ensure the trustworthiness of persons who represent it internationally or domestically. In any event, continuation of the policy is inconsistent with a commitment to ensuring the integrity of federal prosecutions or the essential honesty of Department attorneys.
But there is another, somewhat ironical, indication of the Department’s failure to grasp certain fundamentals. In October 2009, Holder announced the creation of professional responsibility award, which will first be presented in October 2010. According special recognition to government attorneys for demonstrating professional responsibility – as if there existed levels at which government attorneys fulfill their ethical obligations – hardly suggests a refined understanding of the standards of conduct citizens have a right to expect from all government attorneys. Yet presumably some number of high-level Department officials agreed that the award would at least enhance the Department’s image if not actually improve ethical standards. Given that countless Department attorneys will appreciate the incongruity of what in effect is an award for being honest, there is some prospect that even within the Department the award will eventually be a subject of derision.
In any case, more useful than a dubious decoration for professional responsibility would be firm requirements as to the manner in which prosecutors respond to allegations of misconduct, including that they must provide the unalloyed truth about what they did and why they did it, and that they must do so in affidavits. For purposes of illustrating the impermissible deceptions or evasions in prosecutor responses to misconduct allegations, the Department will find a useful case study in the actions of Bruce C. Swartz detailed in his profile page and the materials it references. The Department should also abrogate the OPR policy that causes conduct of O’Neill and Swartz in the Dean case still to go unexamined and otherwise make clear, not only that surviving court scrutiny of allegations of abuse will not end a matter, but that deceiving a court in responding to such allegations is itself a serious abuse if not also a crime.
See also discussion of Attorney General Janet Reno’s 1994 ethics initiative in Section B.8 of my Prosecutorial Misconduct page and the profile page on Jo Ann Harris, the person who first hired Bruce C. Swartz into the Criminal Division.
Friday, September 03, 2010
The low cost of injustice
The following opinion was originally published by NewsBuzz, by Milwaukee Magazine, on September 3, 2010.
By Matt Hrodey
The wrongful imprisonment of Green Bay’s Cody Vandenberg for 15 years on a recently overturned conviction of robbery and attempted homicide was one of the worst such cases in state history. Even if prosecutors decide against retrying or appealing the case, however, Vandenberg is unlikely to collect much in reparations, because Wisconsin’s compensation program for exonerated convicts is badly underfunded.
A shrinking minority of states, 23, offers no compensation program at all for people wrongfully imprisoned. In Wisconsin, after proving their innocence before the Wisconsin Claims Board, a panel of state officials representing the Governor, state Legislature, Department of Administration and Department of Justice, exonerated convicts can receive up to $5,000 a year. Total compensation is capped at $25,000.
“It’s miserable. It’s the lowest compensation amount of any state in the nation and the second-lowest cap in the country,” says Keith Findley, a UW-Madison law professor and co-founder of the Wisconsin Innocence Project, a program at the university providing legal aid to people who may have been wrongfully convicted.
Findley is part of Vandenberg’s defense team. Facing a total of 80 years in prison, the now 45-year-old man was released on Tuesday after a court of appeals decision reversed his conviction in Brown County Circuit Court and concluded “he is entitled to a new trial in the interest of justice.” Vandenberg had been convicted of the 1996 robbery and stabbing of a Bellevue man. But Vandenberg’s alleged getaway driver, Larry Pearson, has since confessed to the crime – most recently under oath in Brown County Circuit Court in a hearing for post-conviction relief requested by the defense.
Pearson and Vandenberg were coworkers at a local repair shop. During Vandenberg’s trial in 1996, Pearson testified as part of his own plea deal but didn’t implicate Vandenberg. Pearson instead claimed the stabbing wounds were inflicted by a third man, a stranger he had met at a bar.
At the trial, the prosecution argued Pearson was trying to cover for his friend Vandenberg by making up the story about “the stranger” and called to the stand a man who had spent time in jail with Pearson. The fellow inmate said Pearson told varying accounts of what happened on the night in question, including one version where Vandenberg was the stabber. But the key piece of evidence, according to the appeals court, was the stabbing victim’s identification of Vandenberg. He and Vandenberg looked similar – but Vandenberg had a beard at the time.
To the jury, it sounded like convincing evidence. But a series of wrongful convictions have led judges across the country to treat identifications of defendants with skepticism. “Eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and is responsible for more wrongful convictions than all other causes combined,” the Wisconsin Supreme Court noted in 2005.
The appeals court wrote that the victim’s identification of Vandenberg was the key to the prosecution’s case, a key that looked a little rusty in light of new evidence provided by the defense that the victim was intoxicated during the attack with a blood alcohol content of .22. Prosecutors lacked “any physical evidence tying Vandenberg to the scene,” the opinion says. Yet Pearson’s bloody shoe-print was found inside the trailer.
Pearson, it turns out, actually confessed to his defense attorney at the time he was guilty of the stabbing – but the lawyer, because of attorney-client privilege, was unable to reveal the confession.
Vandenberg’s first appeal failed. Filed after his trial, it was based not on Pearson’s confession, unknown to him at the time, but on his contention that his defense attorney didn’t present evidence establishing an alibi for him.
Released from custody on Tuesday, Vandenberg will remain under house arrest until he returns to court on Sept. 28 to learn if prosecutors will retry his case in light of Pearson’s confession or challenge the appeals court decision before the Supreme Court.
Making a claim of innocence
If they decide to do neither, Vandenberg can petition the Claims Board for compensation, but in doing so he faces a months-long process whereby he must prove his innocence with “clear and convincing” evidence. “For many truly innocent people, that’s a burden that’s difficult to meet. How do you prove a negative?” says Findley.
Wisconsin law also requires exonerated convicts to prove they didn’t contribute to their conviction in some way through a false confession or some other means. This violates the national Innocence Project’s guidelines for state compensation programs. “This denies justice to those who were coerced, explicitly or implicitly, into confessing or pleading guilty to crimes it was proven they did not commit,” the guidelines say.
Some states provide immediate assistance to exonerated prisoners for housing, psychological counseling, medical aid, job training or other needs, none of which are provided by Wisconsin. “They have nothing as they walk out of prison,” says Mary Delaney, a Madison attorney and member of the Wisconsin Exoneree Network.
Wrongful imprisonment, she says, “is extraordinarily traumatic. A lot of people become agoraphobic and don’t feel like they can rejoin the community.” Long gaps in their employment history are difficult to explain to prospective employers – who may have also seen the charges filed against them on the Wisconsin Circuit Court Access website.
Delaney says quite a few people are denied compensation because they can’t prove their innocence to the Claims Board. Findley says most of the Wisconsin Innocence Project’s clients have not received compensation, either because they were denied or never pursued benefits. The group has lobbied the state Legislature to expand the benefits and make them easier to obtain.
Still, some people wrongly incarcerated in Wisconsin prisons have received the full compensation allowed. One Oak Creek man, Chaunte Ott, released in 2009 after 12 years in prison when DNA evidence cleared him of a rape and murder conviction, received the full $25,000 in an April Claims Board meeting.
Robert Lee Stinson of Milwaukee, also released last year after DNA evidence cleared him of murder charges, spent 23 years in prison. He’s still in the process of seeking compensation.
Texas offers some of the most generous benefits, up to $80,000 a year for life, even though the state is known for its tough criminal justice system and use of the death penalty. People wrongfully imprisoned in the federal system can receive up to $50,000 a year for each year of incarceration or up to $100,000 a year if they spent time on death row.
States have created compensation programs because lawsuits against states for wrongful imprisonment are notoriously difficult. Federal civil rights lawsuits require the former convict to prove the state intentionally incarcerated him or her without due cause.
By Matt Hrodey
The wrongful imprisonment of Green Bay’s Cody Vandenberg for 15 years on a recently overturned conviction of robbery and attempted homicide was one of the worst such cases in state history. Even if prosecutors decide against retrying or appealing the case, however, Vandenberg is unlikely to collect much in reparations, because Wisconsin’s compensation program for exonerated convicts is badly underfunded.
A shrinking minority of states, 23, offers no compensation program at all for people wrongfully imprisoned. In Wisconsin, after proving their innocence before the Wisconsin Claims Board, a panel of state officials representing the Governor, state Legislature, Department of Administration and Department of Justice, exonerated convicts can receive up to $5,000 a year. Total compensation is capped at $25,000.
“It’s miserable. It’s the lowest compensation amount of any state in the nation and the second-lowest cap in the country,” says Keith Findley, a UW-Madison law professor and co-founder of the Wisconsin Innocence Project, a program at the university providing legal aid to people who may have been wrongfully convicted.
Findley is part of Vandenberg’s defense team. Facing a total of 80 years in prison, the now 45-year-old man was released on Tuesday after a court of appeals decision reversed his conviction in Brown County Circuit Court and concluded “he is entitled to a new trial in the interest of justice.” Vandenberg had been convicted of the 1996 robbery and stabbing of a Bellevue man. But Vandenberg’s alleged getaway driver, Larry Pearson, has since confessed to the crime – most recently under oath in Brown County Circuit Court in a hearing for post-conviction relief requested by the defense.
Pearson and Vandenberg were coworkers at a local repair shop. During Vandenberg’s trial in 1996, Pearson testified as part of his own plea deal but didn’t implicate Vandenberg. Pearson instead claimed the stabbing wounds were inflicted by a third man, a stranger he had met at a bar.
At the trial, the prosecution argued Pearson was trying to cover for his friend Vandenberg by making up the story about “the stranger” and called to the stand a man who had spent time in jail with Pearson. The fellow inmate said Pearson told varying accounts of what happened on the night in question, including one version where Vandenberg was the stabber. But the key piece of evidence, according to the appeals court, was the stabbing victim’s identification of Vandenberg. He and Vandenberg looked similar – but Vandenberg had a beard at the time.
To the jury, it sounded like convincing evidence. But a series of wrongful convictions have led judges across the country to treat identifications of defendants with skepticism. “Eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and is responsible for more wrongful convictions than all other causes combined,” the Wisconsin Supreme Court noted in 2005.
The appeals court wrote that the victim’s identification of Vandenberg was the key to the prosecution’s case, a key that looked a little rusty in light of new evidence provided by the defense that the victim was intoxicated during the attack with a blood alcohol content of .22. Prosecutors lacked “any physical evidence tying Vandenberg to the scene,” the opinion says. Yet Pearson’s bloody shoe-print was found inside the trailer.
Pearson, it turns out, actually confessed to his defense attorney at the time he was guilty of the stabbing – but the lawyer, because of attorney-client privilege, was unable to reveal the confession.
Vandenberg’s first appeal failed. Filed after his trial, it was based not on Pearson’s confession, unknown to him at the time, but on his contention that his defense attorney didn’t present evidence establishing an alibi for him.
Released from custody on Tuesday, Vandenberg will remain under house arrest until he returns to court on Sept. 28 to learn if prosecutors will retry his case in light of Pearson’s confession or challenge the appeals court decision before the Supreme Court.
Making a claim of innocence
If they decide to do neither, Vandenberg can petition the Claims Board for compensation, but in doing so he faces a months-long process whereby he must prove his innocence with “clear and convincing” evidence. “For many truly innocent people, that’s a burden that’s difficult to meet. How do you prove a negative?” says Findley.
Wisconsin law also requires exonerated convicts to prove they didn’t contribute to their conviction in some way through a false confession or some other means. This violates the national Innocence Project’s guidelines for state compensation programs. “This denies justice to those who were coerced, explicitly or implicitly, into confessing or pleading guilty to crimes it was proven they did not commit,” the guidelines say.
Some states provide immediate assistance to exonerated prisoners for housing, psychological counseling, medical aid, job training or other needs, none of which are provided by Wisconsin. “They have nothing as they walk out of prison,” says Mary Delaney, a Madison attorney and member of the Wisconsin Exoneree Network.
Wrongful imprisonment, she says, “is extraordinarily traumatic. A lot of people become agoraphobic and don’t feel like they can rejoin the community.” Long gaps in their employment history are difficult to explain to prospective employers – who may have also seen the charges filed against them on the Wisconsin Circuit Court Access website.
Delaney says quite a few people are denied compensation because they can’t prove their innocence to the Claims Board. Findley says most of the Wisconsin Innocence Project’s clients have not received compensation, either because they were denied or never pursued benefits. The group has lobbied the state Legislature to expand the benefits and make them easier to obtain.
Still, some people wrongly incarcerated in Wisconsin prisons have received the full compensation allowed. One Oak Creek man, Chaunte Ott, released in 2009 after 12 years in prison when DNA evidence cleared him of a rape and murder conviction, received the full $25,000 in an April Claims Board meeting.
Robert Lee Stinson of Milwaukee, also released last year after DNA evidence cleared him of murder charges, spent 23 years in prison. He’s still in the process of seeking compensation.
Texas offers some of the most generous benefits, up to $80,000 a year for life, even though the state is known for its tough criminal justice system and use of the death penalty. People wrongfully imprisoned in the federal system can receive up to $50,000 a year for each year of incarceration or up to $100,000 a year if they spent time on death row.
States have created compensation programs because lawsuits against states for wrongful imprisonment are notoriously difficult. Federal civil rights lawsuits require the former convict to prove the state intentionally incarcerated him or her without due cause.
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