Tuesday, May 28, 2013

New York State Legislators some simple steps to help reduce wrongful convictions

The following editorial by the Buffalo News was published on May 17, 2012

Once again, an Erie County resident has been exonerated of charges on which he was wrongly convicted. Nathanial A. Johnson spent nearly four years in prison for an armed robbery he did not commit. And still, Albany cannot find the courage – or even the common sense – to adopt the reforms that would make New York’s criminal justice system more just. What exactly do lawmakers need before they can act?

Perhaps it’s just that the wrongfully convicted have no powerful lobby to support them. What’s four years – or five or 15 or 20 – in prison, anyway? So what if innocent people are trapped behind bars while the actual criminals remain free to rob, rape and murder?

It’s a serious matter. While Anthony Capozzi of Buffalo spent 22 years in prison for rapes he did not commit, the real rapist, Altemio Sanchez, continued attacking women and soon progressed to murder as the Bike Path Killer. His victims might well be alive today if the reforms now being pushed in Albany were in force then. What other victims await because of the Legislature’s indifference?

Capozzi had been misidentified as the rapist by Sanchez’s victims, and from that moment his fate was sealed. Johnson was also wrongly identified by the victim of the robbery, and his conviction was further cemented by sloppy police work and a shady deal made by the prosecution with a witness facing a drug charge.

Witness misidentification is, in fact, the most common cause of wrongful conviction. Something can be done about that, and about another leading cause, the false confession. All that is required is the will to act.

Those reforms include changes in the way police conduct lineups. Witness identifications are notoriously unreliable, especially from victims who were under great stress at the moment of the crime, perhaps even with a gun aimed at them.

An inappropriately conducted lineup can not only lead the witness in a particular direction – purposely or not – but it can also solidify that identification in the mind of the victim who longs for justice but who may initially have been uncertain. “It’s like trace evidence,” said Stephen Saloom, policy director for the Innocence Project in New York City. Once you contaminate an identification, you can’t restore it.

Similarly, video recording of interrogations guards against the phenomenon of false confession, in which a suspect, often under unrelenting pressure and perhaps emotionally or mentally impaired, tells investigators what they want to hear in a vain effort to end their suffering.

These kinds of reforms have been adopted in other states, Saloom said, and none has backed away from them. They work. They produce better detectives and better law enforcement. They help keep innocent people out of prison.

Both Gov. Andrew M. Cuomo and the Assembly have favored reform efforts in these areas. The problem is in the State Senate, where members seem unable to comprehend that preventing wrongful conviction is a law-and-order issue, and a powerful one.

Saloom believes senators are waiting for the state’s district attorneys to lead the way before they will approve any legislation, but that’s allowing the tail to wag the dog. What is more, the reforms being pushed in New York are the product of a committee that was heavy with law enforcement members. There is no justification for continued delay.

One state senator, Patrick Gallivan, R-Elma, is Erie County’s former sheriff. With so many wrongful convictions in his home county – a third recent one was of Lynn DeJac Peters, wrongfully convicted of murdering her daughter – he could be a powerful voice of reason in the Senate, and, indeed, he should be. His resume confers on him a responsibility and his leadership could make a difference.

Johnson was saved from even more time in prison largely because a friend wouldn’t let the case drop. That was his good fortune, but innocent people should not have to depend upon that. The state of New York should be on their side and, as of today, the state doesn’t much care.

Monday, May 27, 2013

Unfinished Business

The following opinion by O. Ricardo Pimentel was published by the San Antonio Express-News on May 23, 2013.

The photo of Gov. Rick Perry signing legislation that diminishes the chances of wrongful convictions in Texas is rich in irony. More important, it projects an indelible sense of job undone.

The irony is embodied in the now-deceased person of Cameron Todd Willingham, who also points to the unfinished work. Those intimately familiar with Texas' criminal justice history can tell you that Willingham, even more than Michael Morton — whose case prompted this legislation — is the state's prime example of wrongful conviction.

Morton's story is incredibly tragic. He spent nearly 25 years in prison after being convicted in the beating death of his wife. The prosecution withheld evidence that would have cleared him. Thanks to the work of the New York-based Innocence Project, Morton was exonerated by DNA evidence that pointed to another man, who has since been convicted.

But Morton is alive. Texas executed Willingham in 2004, convicted on the strength of highly flawed arson evidence for the deaths of his three daughters in Corsicana. The evidence actually points to no arson.

The photo shows Perry signing the bill at his desk, flanked by Morton and legislators. The irony: a report discrediting the evidence used to convict Willingham came across that desk or one similar in plenty of time for Perry to have spared Willingham's life.

It is likely — if not certain — that Texas executed an innocent man. At the very least, the new evidence pointed to the need for a new trial. But the state ignored the report. And the story might have ended ingloriously there but for Perry's actions in 2009, when he replaced three members of the Texas Forensic Science Commission as it was considering the flawed evidence used to convict Willingham. The governor obviously feared embarrassment as a primary challenge from then-U.S. Sen. Kay Bailey Hutchison seemed likely. His handpicked commission chairman squelched the Willingham investigation.

Understand, the bill Perry signed on May 16 was absolutely necessary. Sponsored by Sen. Rodney Ellis, D-Houston, the measure forces prosecutors to share all evidence relevant to the defense. Had it been around, Morton would have likely been spared those 25 years in prison. And, now, others will surely be spared that fate. Have I mentioned that Texas has a nation-leading 117 exonerations?

But about that unfinished business. Texas has undertaken other reforms of criminal justice. It's now easier, for instance, for inmates to get access to DNA testing.

But DNA evidence is not available in all cases. Even with this new requirement for sharing evidence, there will surely be convictions in the future based on circumstantial evidence, notoriously flawed eyewitness accounts, testimony from untrustworthy sources and other evidence of dubious scientific and factual merit. And even with the scare presented by the pursuit of criminal charges against the district attorney who prosecuted Morton, there will still be prosecutors for whom winning will be the most important thing. Some of these will be capital cases.

The unfinished business for Texas is to rid itself of the death penalty — an absolute sanction from which there is no remedy.

There can be no guarantee of error-free process in these types of cases and others. It will be legal due process, to be sure, scant comfort to someone wrongfully executed. If Morton's case involved the death penalty, he'd be dead. Willingham is, killed on the strength of invalid arson evidence. There will be errors in future death penalty cases. Since it cannot be otherwise, Texas — and all other states — must cease killing people.

Monday, May 20, 2013

Beyond the Brady Rule

The following editorial was published by the New York Times on May 18, 2013.

Fifty years ago, in the landmark case Brady v. Maryland, the Supreme Court laid down a fundamental principle about the duty of prosecutors — to seek justice in fair trials, not merely to win convictions by any means. The court said that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence.

It might seem obvious that prosecutors with any sense of fairness would inform a defendant’s lawyer of evidence that could be favorable to the defendant’s case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

It is impossible to know how often prosecutors violate Brady since this type of misconduct, by definition, involves concealment. But there is good reason to believe that violations are widespread. Hundreds of convictions have been reversed because of prosecutorial suppression of evidence. In many cases, the exculpatory evidence surfaces only on appeal of a conviction, and often comes to light because other aspects of the prosecution are rife with error.

The 2011 case of John Thompson is particularly instructive — as an example of atrocious prosecutorial misconduct and of the Supreme Court’s refusal to hold the prosecutor accountable. Mr. Thompson spent 14 years on death row for a murder he did not commit. He was exonerated when an investigator found that lawyers in the New Orleans district attorney’s office had kept secret more than a dozen pieces of evidence that cast doubt on Mr. Thompson’s guilt, even destroying some. Yet the Supreme Court’s conservative majority overturned a $14 million jury award to Mr. Thompson, ruling that the prosecutor’s office had not shown a pattern of “deliberate indifference” to constitutional rights. Outrageous breaches of due process rights in such cases show that the Brady rule — which seems essentially voluntary in some places — is simply insufficient to ensure justice.

A better approach is to require the opening of prosecutors’ files to defendants, as a general rule. North Carolina adopted open-files reform to make criminal cases more efficient and fair. The state statute requires prosecutors in felony cases, before trial, to make available to the defense “the complete files of all law enforcement agencies, investigatory agencies and prosecutors’ offices involved in the investigation of the crimes committed or the prosecution of the defendant.” The statute has improved the justice system, including enhancing fairness in plea bargains.

Ohio has followed North Carolina’s lead, and other states should as well. So should Congress. The Justice Department insists that it has solved this problem by tightening requirements for disclosure in its manual for federal prosecutors, but numerous misconduct scandals show that is not sufficient. Since the Brady decision, prosecutors throughout the justice system have acquired more power, with little to deter them from abusing that power. The best way to fulfill the promise of Brady is with open-files reform, which addresses the need for full disclosure of evidence that could show a defendant’s innocence.