Sunday, April 20, 2014

Conviction Reviews Could Spare Innocent, State

The following editorial was published by the Hartford Courant on April 18, 2014.

Kenneth Ireland lost the years when he might have gone to college, started a career, begun a family. They were taken from him when he was jailed for 21 years for a rape and murder that he didn't commit. He was exonerated in 2009 when DNA testing led authorities to another man, who was convicted of the crime.

In addition to Mr. Ireland's almost incalculable personal loss, there will be a bill for the taxpayers. As The Courant's Alaine Griffin reported, state officials announced last week they will not fight his efforts to seek $5.5 million to $8 million in compensation for years he lost in prison.

Mr. Ireland's is one of several wrongful convictions that have come to light in recent years. The cases of James Tillman, Miguel Roman and Scott Lewis also made headlines, as has the pending case of Richard Lapointe. The loss of freedom, family, reputation and career is cruel, and the financial damage to the state is not insignificant.

Is there a way to improve the system, to lessen the chances of another Kenneth Ireland case?

Special Unit

Yale political science professor David Cameron thinks so. Mr. Cameron, who has closely followed many of these cases, proposes a statewide conviction integrity unit that would examine convictions in cases in which there is suspicion of official misconduct, perjury by unreliable witnesses or other such issues. A number of major cities across the country have created such units.

Chief States Attorney Kevin Kane sees merit in the idea, but believes it needs to be part of a broader reform effort.

Mr. Kane said his office is already doing some of the things an integrity unit would do. He said his office is in the midst of a multi-year review of convictions in which DNA testing might result in exoneration, and also has an informal partnership with The Connecticut Innocence Project, which helped free Mr. Ireland, to review questionable cases.

The key would be to get to such cases sooner so that the next Kenneth Ireland doesn't spend 21 years behind bars. Indeed, Mr. Kane said, many problematic cases could be stopped before they happen with more thorough review of arrest warrant applications. This, Mr. Kane said, would require a shift in resources — one he would welcome.

Habeas Glut

The habeas corpus system is supposed to function as a conviction integrity unit; it allows a person to challenge the validity of a conviction or sentence.

The problem, as Mr. Kane observed several years ago, is that more than 600 habeas petitions are filed by inmates each year, clogging the system. The vast majority of these are shots in the dark, overwhelmingly without merit. But prosecutors and other court personnel have to go through all of them, sometimes going to mini-trials, to be sure the valid ones get a hearing.

Though Mr. Kane has won modest reforms, inmates are still filing habeas petitions "like crazy." They cost the state millions of dollars a year.

Also, with the closing of mental hospitals decades ago, the criminal justice system has become, for many, the de facto mental health system. The courts are jammed with chronic low-level offenders, many of whom are mentally ill. It is a national shame that America still puts such people in prisons. There are some programs around the state that aim to divert such people to treatment; if this can be expanded, more attention can be paid to the rest of the system.

Criminal appeals are of limited value in some cases because they review aspects of the trial, not the case's fundamental credibility. There ought to be a conviction integrity unit, and there ought to be the broad reform to make it possible.

There are review panels to discuss hospital deaths, police shootings, train crashes. There ought to be one for major criminal convictions.

Saturday, April 12, 2014

The death of the presumption of innocence: A dirty secret of the American judicial system is that juries are hardly fair and impartial

The following opinion by Andrew Cohen was published in The Week on April 10, 2014.

Imagine you are a defendant awaiting trial on criminal charges that could send you to prison for the rest of your life. You are sitting at the counsel table during voir dire, the process by which a jury is selected before a trial.

The prosecutor asks a potential juror: "You haven’t heard any evidence. How would you vote?" The potential juror responds: "I would have to vote guilty."

Your trial judge pipes up. He's supposed to ensure that you receive a fair trial and that the jurors who will sit in judgment upon you are neutral, objective, and willing to see and hear the evidence with an open mind. The judge asks the prospective juror: "Could you return a verdict of not guilty if the government doesn't prove its case beyond a reasonable doubt?" The would-be juror responds: "I don't think I would be able to."

The prosecutor — who wants this juror on the panel because he wants to convict you — presses on. He asks the juror: "Let's say the victim takes the stand [and] you flat-out don't believe her. In fact, you think she's lying. You look at her [and conclude], 'I don't believe a word coming out of her mouth.' Are you going to convict this man anyway?"

The potential juror responds: "That depends. I still feel he was at fault."

How would you feel if this juror were allowed to join the panel that determined your fate? Would you feel as though you had received a fair trial by an impartial panel, as the Sixth Amendment commands? Or would you feel that the trial judge had failed to protect your presumption of innocence?

My guess is you would feel cheated. I know I would. But yet this precise scenario unfolded in California in 2009. This juror was allowed to serve on this trial. And to date, no judge has declared it a violation of the defendant's constitutional rights.

Now, in this particular case, the defendant, Jose Felipe Velasco, was accused of an extremely heinous crime. He was an alleged serial child rapist who had gotten a 14-year-old girl pregnant after having some form of sex with her 21 times. But that should not change our minds about whether this man should be presumed innocent and be entitled to a fair trial. Indeed, this is precisely why we have constitutional rights in criminal cases — so that fairness and due process come even to the despised.

R. Scott Moxley, a veteran reporter and columnist for OC Weekly, brought this story to national prominence this week — and it's a remarkably ugly picture in every way. Not only were the charges awful, not only is this defendant as unsympathetic a figure as the criminal justice system churns out, but the way the case was handled was ignoble, too. Thousands of years' worth of the presumption of innocence shouldn't go out the window just because a defendant is accused of heinous crimes.

The potential juror in the case, known today only as Juror 112, was permitted to sit in judgment upon Velasco only after she promised — after extensive questioning by the prosecutor, and over the objection of defense attorneys — that she thought she could "try" to be fair to the defendant. This "promise" was good enough for the trial judge, a former prosecutor, as well as two federal judges who later reviewed the transcript to determine whether Velasco's Sixth Amendment rights had been violated.

What were these judges thinking? We'll never really know. Unlike Juror 112, the jurists did not volunteer any candid assessments of the situation. They did not fully explain how any reasonable person, reviewing the transcript of the jury selection process before Velasco's trial, could have come away from it believing that this juror was going to give the defendant the benefit of all reasonable doubts. It was enough, they said, that she pledged to "try."

The dirty secret here is that what happened in this case happens every day in courtrooms all over the country. Judges and lawyers are desperate to seat juries, while potential jurors are desperate to avoid jury duty or to put their stamp upon the proceedings. As a result, the business of selecting jurors occurs with a sort of wink and a nod. Jurors are asked to put aside whatever preconceived notions they have about a case — or about justice generally, or about the defendant in particular — and so long as they say they will do so they are allowed to join a panel that determines, in some cases, who lives and who dies, and who goes to prison for 123 years to life.

Sometimes, as we see here, the benefit inures to prosecutors. Velasco's prosecutor wanted this juror on the panel because he knew that she would vote to convict the defendant. And so he attempted to "rehabilitate" her in the eyes of the judge. Think about the metaphysical ramifications of that: we ask citizens, like this juror, to lie about their open-mindedness so that we may place them on juries where they then are charged with determining which witnesses are lying during their trial testimony.

But sometimes this fuzziness during voir dire helps the defendant. I will never forget Michael Tigar, the greatest trial lawyer I ever saw, save Oklahoma City bombing defendant Terry Nichols' life during jury selection when he convinced a juror who was opposed to the death penalty (and thus technically ineligible to sit on a capital jury) to keep an open mind about it. On and on the questioning went until she promised to do so. And then, guess what? She was likely one of the jurors who refused to recommend a death sentence for Timothy McVeigh's co-conspirator.

Why does it matter if a child rapist is judged by people who consider him guilty before they have seen any of the evidence against him? Because the presumption of innocence goes back thousands of years, to the Old Testament, to Greek and to Roman law, and to English common law, from which American law was born. Because the United States Supreme Court, 120 years ago in a case styled Coffin v. United States, decreed that "the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our current law."

That is still the law of this land. It has not since been overturned. There are no exceptions to that rule in cases of alleged murderers or child rapists. Judges and jurors don't get to decide when they will honor this rule and when they won't. The "rehabilitation" of jurors like Juror 112 may have sped up the pace of Velasco's trial but it created a result that violates the Constitution and is unworthy of any respect.

The lesson here isn't that Juror 112 should have just kept to herself her visceral prejudgment of the case. The lesson is that our justice system needs to react more justly when citizens like this are so candid in declaring their unworthiness to serve.

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Andrew Cohen is a contributing editor at The Atlantic, a fellow at the Brennan Center for Justice, and a legal analyst for 60 Minutes and CBS Radio News. He has covered the law and justice beat since 1997 and was the 2012 winner of the American Bar Association's Silver Gavel Award for commentary.