Sunday, July 22, 2012

Innocence Commission: Justice Worth Price

The follow editorial was published by The Ledger on July 21, 2012.

A commission that was set up to propose ways for Florida to avoid convicting innocent people has finished its work. It came up with several concrete recommendations — mostly already proven effective in other states — but its major proposal boiled down to one word.


More specifically, the Florida Innocence Commission said the state's criminal-justice system doesn't have enough money to function properly and prevent grievous injustices from occurring.

That's not a problem unique to the criminal courts, of course. The Legislature has been cutting and slashing agencies from all three branches of government for several years, with no relief in sight. The chronically weak economy isn't the Legislature's fault. The blame for that goes far beyond Florida's — and America's — borders.

But one thing that is the Legislature's fault is its absolute refusal to even consider any form of new revenue, regardless of how equitable it might be. Sometimes, cost cutting can be even more expensive than meeting needs head-on.

One major example given by the Innocence Commission — which was created by the Florida Supreme Court — is a law passed this year that tightens up the amount of money the state will allow lawyers to be paid for representing indigent defendants who can't be represented by public defenders for various reasons. It sets a maximum compensation for defending the most serious crimes at $15,000 in capital cases. In many instances, a lawyer would be paid less than the state's minimum wage.


What kinds of lawyers would be willing to accept such a fee system? Would you want one of them defending you? The Innocence Commission, which included a number of prosecutors and law-enforcement officials, said no — unanimously. The commission said the fee system "invites ineffective assistance of counsel and wrongful convictions."

Commission Chairman Belvin Perry, a circuit judge from Orlando who has presided over many high-profile criminal cases, spelled it out: "Someone in jail who is wrongfully convicted, or someone who is inexperienced, has to battle in court against experienced attorneys. The only thing the criminal-justice system has is the confidence that people have in it. The underfunding of this system in this state is going to lead us to a situation where people will look at the system and have no faith or confidence in it.

"We hear about the executive branch hiring out-of-state counsel for three to four hundred dollars an hour. It would be one thing if we start paying someone one hundred to one hundred twenty-five dollars an hour to represent a person charged with murder in the first degree, considering the state wants to impose the ultimate sanction to forfeit that person's life. Now an attorney has to sign an agreement to take $15,000 for a case lasting more than a year. That is a mockery in and of itself. When we have 10-20-life, we still have to give the person a chance to come to court and require the state to prove guilt. I challenge you to pull out the Declaration of Independence and read what led to this country breaking away from England. Read what the King of England did and ask if we are heading down that path."

The commission said court-appointed defense attorneys should be paid on the basis of the level of felony involved, without flat fees.


The commission also recommended that jurors be instructed to use caution in accepting the testimony of jailhouse "snitches," who may expect a reward for cooperating with prosecutors. It also urged that steps be taken to ensure that a witness' identification of a criminal defendant isn't prompted by the actions of police or prosecutors, or that confessions haven't been coerced or obtained through egregious deception. The commission also said the court system needs to take better notice of cases in which attorney misconduct has been persuasively shown.

And it urged that more money be spent in DNA testing and record-keeping, because DNA testing has resulted in the freeing of many innocent people who were convicted of crimes before the tests were available.

Some of the commission's proposed reforms were incorporated in a bill proposed in the 2012 legislative session by Sen. Joe Negron, R-Stuart, who was a member of the commission. The bill didn't pass, so the Legislature should resolve now to make these reforms a much higher priority for the 2013 session.

Wednesday, July 18, 2012

The dark side of forensic science

The following opinion by The Editorial Board of the Washington Post was published on July 16, 2012.

KIRK L. ODOM is innocent.

Federal prosecutors finally have confirmed that Mr. Odom was wrongfully convicted of a 1981 D.C. rape, for which he served 20 years in prison. Mr. Odom was sentenced at age 18; this nightmare has consumed more than half his life, and all because of errors in forensic techniques.

Worse still is that he isn’t alone. As The Post’s Spencer Hsu and others reported in a series of investigative articles this spring, similar errors have led to the convictions of two other men in the District: Santae A. Tribble, who served 28 years in prison, before a judge overturned his conviction in May, and Donald E. Gates, who served the same number of years for a 1981 Rock Creek rape and murder he didn’t commit.

These three cases should serve as a call to explore forensic errors that could have put more innocent men behind bars — or could do so in the future. In the wake of The Post’s reports, the Justice Department and the FBI announced last Tuesday the largest-ever post-conviction review, which will examine all cases after 1985 that relied on hair and fiber examinations. This is necessary and long overdue.

However, while the review’s results almost surely will uncover deficiencies in previous uses of forensic evidence, many flawed practices — including hair-sample analysis — are no longer in standard usage. Beyond finding and acknowledging errors of the past, a focus should be on taking every conceivable step to eliminate future wrongful convictions.

In terms of forensics, there’s still considerable work to do. As the National Academy of Sciences recommended in a 2009 report to Congress: “Research is needed to address issues of accuracy, reliability, and validity in the forensic science disciplines.” Although hair-sample analysis may be obsolete, uncertainty attaches to other techniques still in common use, such as firearm examination and fingerprint analysis. To that end, Sens. Patrick J. Leahy (D-Vt.) and John D. Rockefeller IV (D-W.Va.) each have proposed bills that would, among other things, promote more scientific research and develop uniform forensic standards. These reforms are critical steps that should have been enacted long ago, and they should be enacted without further delay.

U.S. Attorney Ronald C. Machen Jr. expressed his office’s sympathy with Mr. Odom: “Though we can never give him back the years that he lost,” he wrote, “we can give Mr. Odom back his unfairly tarnished reputation.” He’s right: No amount of recompense — financial or otherwise — could right the wrongs done to Mr. Odom, Mr. Tribble, Mr. Gates and however many others have been wrongfully convicted.

All the more reason to take every possible step to avoid similar mistakes in the future.