The murder evidence evaporated, but Jeffrey Havard still sits in a Mississippi prison

The following opinion by Radley Balko was published by the Washington Post on September 19, 2018.

In 2002, Jeffrey Havard was convicted in Mississippi of sexually abusing and killing Chloe Britt, the 6-month-old daughter of Rebecca Britt, his girlfriend. He was sentenced to death. In the years since his conviction, multiple expert witnesses have sharply criticized the evidence used to convict him. Most notably, the medical examiner whose trial testimony put Havard on death row has since renounced one of his most damning claims and has contradicted another.

On Sept. 14, Adams County Circuit Judge Forrest A. Johnson ordered a new sentencing trial for Havard. But Johnson’s opinion didn’t go nearly far enough. It was sloppily written, wrong on the law and in many ways a cop-out. But it was also merely the latest of more than 15 years of court opinions that have failed Havard.

For a full summary of the case, check out a piece that Tucker Carrington and I wrote for Reason, which is adapted from our recent book. But for the purposes of this post, and to understand why Johnson’s opinion is so misbegotten, here’s what you need to know:

According to Havard, on the night of Feb. 21, 2002, Rebecca Britt went out to get dinner for the two of them, leaving Chloe in Havard’s care. After the infant spit up on her clothes, Havard gave her a bath. As he lifted her from the tub to dry her off, Chloe slipped from his hands. She hit her head on the toilet on the way down. Havard admits that he initially lied to Britt and to emergency room doctors about dropping Chloe, claiming that he didn’t know what had caused her injuries. For that, he arguably should have faced a lesser criminal charge. Instead, he was charged with capital murder, convicted and sentenced to death.

To convict Havard of murder, Mississippi officials relied on the testimony of medical examiner Steven Hayne, has since been barred from doing autopsies by Mississippi prosecutors and declared “discredited” by the U.S. Court of Appeals for the 6th Circuit. (He is also the subject of our book.) Hayne testified that Chloe had the telltale symptoms of Shaken Baby Syndrome (SBS). The scientific validity of SBS and diagnoses of the condition have increasingly been called into question scientists and forensic analysts in recent years.

But for Havard to receive a death sentence, prosecutors had to show aggravating circumstances, beyond the murder. For this they again turned to Hayne, who testified that he found injuries to Chloe that were consistent with “penetration of the rectum by an object.” Prosecutors also put on testimony from the county coroner and emergency room personnel, some of whom gave graphic testimony about bleeding and tearing of the infant’s rectum.

Over the years, much of this evidence against Havard has withered away. As noted, Shaken Baby Syndrome has become a highly contested diagnosis in the medical world, and based on the symptoms Hayne observed, it would no longer be considered a valid diagnosis. Three other medical examiners and a mechanical engineer who has studied SBS have submitted affidavits on Havard’s behalf, and all have stated that the injuries Hayne described and photographed in his autopsy report were consistent with Havard’s story. In fact, Hayne himself now says he was wrong to attribute the child’s injuries to SBS. It was for this reason that the Mississippi Supreme Court gave Havard permission to ask the trial court that convicted him for an evidentiary hearing on SBS. That’s the hearing that resulted in Johnson’s Sept. 14 opinion.

But the other evidence against Havard has also come under fire. Three medical examiners — the well-known New York forensic pathologist Michael Baden, former Alabama state medical examiner James Lauridson and pediatric forensic pathologist Janice Ophoven — have all submitted affidavits stating that, based on Hayne’s autopsy report for Chloe, they saw no evidence of sexual abuse. What about the coroner and ER personnel who claimed to have seen the baby’s injuries firsthand? All speculated that they may have mistaken dilation of the anus — a common phenomenon in infants and young children shortly after death — for an injury caused by sexual abuse.  The memories of the ER staff and coroner may also have been distorted by the fact that police and prosecutors had declared Havard a child abuser. Whatever the reason for their testimony, three separate reputable, accredited forensic pathologists submitted affidavits with unequivocal conclusions — there was no evidence that Chloe Britt had been sexually abused.

For more than a decade, Mississippi appeals courts rejected those opinions in favor of the discredited Hayne’s assessment. But in 2012, Hayne too came out and said he didn’t believe Chloe had been sexually abused. Two years later, he gave an even stronger statement, declaring that he not only didn’t believe she’d been abused, but also had told prosecutors as much before the trial. There’s good reason to doubt that this was true, not least of which is Hayne’s own testimony at trial. But the fact remains: Hayne has said for a number of years that he no longer believes Chloe was sexually abused.

Before I get to Johnson’s short opinion, there are a few other things about Havard’s trial that are worth mentioning:

• Havard’s attorneys asked the trial court for funding to hire an independent medical examiner to conduct a second autopsy. They were denied.

• The prosecution called 16 witnesses. Havard’s defense attorneys called one. The prosecution’s case takes up 261 pages of trial transcripts. Havard’s defense takes up just three. So the jury heard 87 times more testimony from prosecution witnesses than from defense witnesses.

• The entire trial — jury selection, trial, deliberation, verdict, sentencing trial, deliberation, verdict and death sentence — lasted just two days.

• In his 2008 opinion denying Havard’s appeal, state Supreme Court Justice George Carlson wrote that Lauridson’s affidavit stated that “there is a possibility that Chloe Madison Brit [sic] was not sexually assaulted.” Carlson then wrote, “Taking this statement to its logical conclusion, this leaves open the possibility that she was.” In fact, the phrase “there is a possibility” doesn’t appear in Lauridson’s affidavit. Here’s what he actually wrote: “The conclusions that Chloe Britt suffered sexual abuse are not supported by objective evidence and are wrong.”

• Only 1 out of 9 justices on the state Supreme Court dissented in 2008, and would have given Havard a new trial. When that justice later ran for reelection, he was attacked in television ads that portrayed him as a defender of a child rapist.

• Carlson wrote in 2008 that Lauridson’s affidavit declaring there was no evidence of sexual abuse was “contrary” to Hayne’s testimony. But when Hayne then said in 2012 that he also did not believe there had been any abuse, the court again rejected Havard’s appeal, and Carlson again wrote the majority opinion. Incredibly, this time Carlson claimed that Hayne’s new declaration didn’t substantially differ from his trial testimony, and therefore wasn’t newly discovered evidence. Put another way, in 2008 Carlson cited Hayne’s trial testimony as convincing evidence of sexual abuse. Four years later, when Hayne signed an affidavit stating he didn’t believe there had been any sexual abuse, Carlson claimed that the affidavit didn’t contradict Hayne’s trial testimony. These two things can’t both be true.

• It’s worth considering the plausibility of the state’s theory about the crime: On the night Chloe died, Havard gave Rebecca Britt $20 to run to the grocery store; he did this so he could rape her 6-month-old daughter. According to the state, in the time it took Britt to buy some burrito supplies, Havard anally raped the infant, orally raped her, shook her violently enough cause injuries that would later — but not immediately — kill her, then bathed and cleaned her, dressed her, and tucked her into bed as if nothing had happened. The bath also would had to have been thorough — none of Havard’s hair, skin cells or semen was found on or inside the girl.

When the Mississippi Supreme Court finally gave Havard permission in 2015 to ask for an evidentiary hearing from the same trial court where he had been convicted, the order included one important restriction: The hearing would only cover SBS. It would not re-litigate the sexual abuse allegations. Havard had already had his chance to challenge those. He had lost, thanks to Carlson’s odd logic. Havard was procedurally barred from raising them again.

At the hearing on SBS in August 2017, Hayne and other experts testified that the diagnosis was no longer widely accepted in the scientific community and that in Havard’s case specifically it was inaccurate. It’s important to note that while Judge Johnson mentions in his recent opinion that Havard had at one time admitted to having anger issues, he had never previously been accused of any sort of child abuse. The only evidence contradicting Havard’s claim to have accidentally dropped the baby was Hayne’s testimony that her symptoms could not have been caused by a fall, only from “violent shaking,” a phrase Hayne and the prosecutor used seven times.

In his opinion, Johnson doesn’t dispute that the SBS diagnosis has since been called into question. Instead, he adopts the state’s argument that even if the jury hadn’t heard Hayne’s testimony about it, they likely would have convicted Havard anyway. To support this contention, he cites the fact that Havard initially didn’t tell Britt or doctors that he had dropped Chloe. The judge cites Havard’s anger issues. And probably most important, he cites the evidence of sexual abuse — evidence that has also since been discredited, though Havard wasn’t permitted to mention that at this particular hearing. Johnson makes much of the fact that in one police interview, Havard himself admitted to lightly shaking Chloe, after she first fell and hit her head and was initially unresponsive. But none of the experts who offered opinions on the case, including Hayne, believe that any shaking, much less the light shaking Havard described, caused Chloe’s injuries. Despite acknowledging the consensus among the experts that SBS was in this case the wrong diagnosis, in even bringing this up Johnson reveals that he, a judge untrained in medicine, still believes it.

Having stated that he thinks the trial jury would have convicted Hayne even without the SBS diagnosis, Johnson then denies Havard’s request for a new trial. But then he does something curious. He writes:

While the evidence presented by Petitioner is not sufficient to undermine this Court’s confidence in the conviction, there is a cautious disturbance in confidence of the sentence of death, even if slight. Matters and arguments that would not reasonably have changed a juror’s vote on the question of guilt, could have, even if slight, as to the decision on the sentence of death.

Johnson then orders a new sentencing trial for Havard.

At first glance, this might seem to make some sense. Johnson appears to have some doubt about Havard’s guilt. It isn’t enough doubt to merit a new trial, but it’s enough to make him jittery about an execution. The problem is that the hearing wasn’t granted to review the sentence, and this sort of compromise isn’t authorized under Mississippi law. In fact, in death penalty trials, defense attorneys are explicitly prohibited from appealing to lingering doubts jurors may have about a defendant’s guilt when asking them to spare that defendant’s life. (That prohibition is often ignored and sometimes laxly enforced, but it exists.)

The Mississippi Supreme Court had ordered a hearing on the scientific validity of Shaken Baby Syndrome. Earlier testimony about SBS is what got Havard convicted. But the SBS testimony was not what got him sentenced to death — that was the testimony about sexual abuse. If Johnson believes the SBS testimony was wrong, the remedy is to give Havard a new trial. It is not to uphold the verdict, then pass the buck to a new jury to decide if he should live or die. The sentencing trial will start from the premise that Havard is already guilty. Since SBS evidence is why Havard was convicted and not why he received a death sentence, this means that the new jury likely won’t even get to hear the criticisms of SBS that gave Johnson enough pause to order a new sentencing trial in the first place.

The ruling is short — just five pages. It’s also sloppy. Johnson misspells Hayne  as “Haynes” throughout. I’m the last person who ought to be a stickler about spelling errors, but this is an opinion from a hearing in a death penalty case. It doesn’t seem like too much to ask that the judge correctly spell the name of the state’s expert whose testimony is the entire reason that the hearing took place.

Mostly, this was a gutless ruling. Johnson clearly has some doubt about Havard’s guilt. His legal options were to either act on that doubt by granting Havard a new trial, or to strongly justify his assertion that the jury would have convicted anyway. Instead, Johnson carved out a third way. He skirted the law to remove Havard’s fate from his own hands and put it in those of a jury.

Had Johnson given Havard a new trial, the doctor who performed the autopsy on Chloe Britt would not testify that she had been shaken to death. Nor would that doctor support the state’s theory that she had been sexually assaulted. He would contradict it. If the state did manage to find an expert to make either claim, Havard would be able to call his own expert witnesses in rebuttal. Havard would also be able to call his own experts to testify that the baby’s injuries were entirely consistent with Havard’s story. At the very least, this time around, the defense would call more than one witness.

Perhaps this theoretical new jury would convict Havard anyway, as Johnson seems to believe. But the trail would look a heck of a lot fairer than the one he received. And Mississippians could be more confident that this man their state wants to execute got a real crack at justice.

Take it from Pope Francis and Illinois: the death penalty should go

The following editorial by the Chicago Sun-Times was published on August 2, 2018.

Take it from Illinois, the death penalty is a moral embarrassment.

For decades, Illinois did its best to fashion a system for imposing the death penalty that would not ensnare innocent people. But, as one exoneration for a wrongful conviction was followed by another, our state came to realization that there was — and never could be — a fully fail-safe system.

That alone stands as a powerful argument in support of Pope Francis’ call on Thursday for the abolishment of the death penalty worldwide.

We also would urge every state in the Union that still employs the death penalty to take to heart the pope’s simple moral argument: the state-sanctioned killing of individuals is “an attack on the inviolability and dignity of the person.” It deprives the guilty — even the most awful offender — of “the possibility of redemption.”

To this we would add one further argument: Not one good study has ever shown that the death penalty deters violent crime. When a society resorts to brutal violence to solve the problem of brutal violence, it is turning its back on reason.

Unlike many other states, Illinois has long supported a network of public defenders. These public defenders do a markedly better job of defending indigent clients than do many court-appointed lawyers in other states, who typically are paid a pittance. Moreover, Illinois instituted a string of reforms over the years to ensure that defendants in death penalty cases received fair trials.

Yet, for all of that, the system never worked flawlessly, and it had to work flawlessly.

Illinois has a more spirited and fair-minded appellate court review process than in some other states, which is how our state came to discover that a dismaying number of innocent people had been wrongfully sentenced to death.

Today, Illinois is among the 19 states that have abolished the death penalty. Four other states have moratoriums. Most predominantly Catholic nations also have done away with it.

Worldwide, more than 20,000 people are awaiting execution, according to Amnesty International. But over the millennia, people have come to realize that widely accepted but morally repugnant practices, such as torture and slavery, have no place in a just world.

Capital punishment should be added to that list of banished barbarisms.

Prosecutors must be held accountable for misconduct

The following opinion by Alanah Odoms Hebert was published by the New Orleans Times-Picayune on August 3, 2018.

When prosecutors prioritize winning convictions over advancing justice and ensuring fair trials, they risk convicting the innocent. Time and time again in Louisiana, innocent lives have been destroyed by wrongful convictions, while the prosecutors responsible have evaded accountability.

John Thompson spent 18 years in prison, 14 of those on death row, before blood test results withheld by prosecutors proving his innocence were uncovered. Reginald Adams spent 34 years in prison before a police report implicating another man came to light. Robert Jones spent 23 years in prison before evidence of his innocence undermining the state's case was found buried in prosecution files.

Of the 52 Louisiana exonerations listed in the national registry of exonerations, 75 percent involved official misconduct. If not for this misconduct, 39 people may not have been wrongfully convicted.

Thompson, Adams and Jones were each taken from their families as young men and robbed of their dreams and the lives they could have led. They spent decades fighting for their freedom, proving that prosecutors used false testimony, fabricated evidence, withheld evidence and inflamed the jury with improper arguments to seal their convictions.

No prosecutor has been sanctioned for the egregious misconduct in these cases even though 75 collective years, 27,375 days of freedom, and countless opportunities were stolen from them.

While the U.S. Supreme Court has long invoked professional discipline, including sanctions, suspension and disbarment as the incentive for prosecutors to avoid corrupt conduct, our state Supreme Court largely has given prosecutors a free pass. Only one prosecutor has been sanctioned for misconduct in Louisiana, but even that discipline was a mere slap on the wrist: a three-month suspension from the practice of law that was deferred entirely even though he put another man's life in jeopardy in a death penalty case.

Right now, in a case regarding the wrongful conviction of Michael Williams, the Louisiana Supreme Court has an opportunity to reverse course and send a message to prosecutors that they, too, must play by the rules to ensure justice and fairness.

Williams spent 16 years in prison before evidence discrediting the state's only witness surfaced from the prosecutor's file. Once the witness' changing, wildly inconsistent statements came to light, the charge against Williams was dismissed and he was freed. Williams' attorney urged the Office of the Disciplinary Counsel to hold the prosecutor, Ken Dohre, accountable for his misconduct. The Hearing Committee recognized the grave injustice caused by Dohre and suspended him from practice of law for a year and a day. Dohre appealed to the Attorney Disciplinary Board, and his case is now before the Supreme Court.

The court must not give Dohre a pass for his misconduct that directly caused an innocent man to go to prison for 16 years. He wielded great authority and abused it by flouting the rules of fair play to win. The appropriate punishment for Dohre -- suspension of his law license for one year and a day -- pales in comparison to the psychological, emotional and physical harm Williams suffered in prison.

When prosecutorial misconduct goes unpunished and prosecutors suffer no consequences for flouting the rules, the incentive to avoid misconduct withers, and the likelihood of wrongful convictions soars.

The Supreme Court should exercise its oversight muscle when prosecutorial misconduct causes harm. Prosecutors often speak about the deterrence value of securing convictions, but where is the deterrence for prosecutors if they are never punished for their misconduct?

Prosecutors' unchecked power to win at all costs must not remain unchecked. Innocent lives are at stake.

Alanah Odoms Hebert is executive director of ACLU Louisiana.

America’s prosecutors are so hellbent on closing cases and getting guilty verdicts that they will often get them by any means necessary.

The following opinion by Shaun King was published by The Intercept on June 22, 2018.

THERE IS A humanitarian crisis unfolding on our borders, in which thousands of immigrant children, including infants and toddlers, have been forcefully taken from their parents and sent away with strangers. But another crisis — where families are also separated — is hanging over American life: mass incarceration. Now, though, one of the most important pieces of criminal justice reform legislation is on the cusp of becoming law in New York. As it stands, the bill is one signature away — Gov. Andrew Cuomo’s — from being put on the books.

Every day, we hear about horrible cases, in which men and women — often black men and women — are being set free from prison after serving huge chunks of their lives for crimes they didn’t commit. Sometimes they have served 30 or 40 years behind bars. Frequently, prosecutorial misconduct was the cause of the wrongful conviction.

It could be that exonerating evidence was deliberately withheld or confessions of guilt from an entirely different person were disregarded. Maybe credible, verifiable alibis were ignored. In some cases, DNA evidence was shelved and ignored.

All this because America’s prosecutors are so hellbent on closing cases and getting guilty verdicts that they will often get them by any means necessary.

Jabbar Collins comes to mind.

In 1994, he was sentenced to life in prison for the murder of a local rabbi — except he was completely innocent. Determined to close the case, prosecutors hid crucial evidence that exonerated him, threatened witnesses, and gave other witnesses perks to completely fabricate their testimony. After serving 15 painful years in prison, Collins was finally set free. It cost him a generation of his life — and it cost New York City and the state $13 million, which he won in a lawsuit.

THESE TYPES OF exonerations are far from uncommon. After reviewing all of their exoneration cases, guess what the Innocence Project determined as the leading cause of wrongful convictions? Prosecutorial misconduct. A 2018 study by the National Registry of Exonerations made the exact same determination. Police and prosecutor misconduct — not faulty witnesses or false confessions — is the primary cause of wrongful convictions in our country.

In New York, though, political bodies are finally pushing for some accountability. As of last week, the State Assembly and Senate have now each passed a bill, the first of its kind in the nation, forming an independent commission with full subpoena power, to investigate prosecutorial misconduct. It’s wild that nothing like this already exists, but that gets to the heart of the matter. America’s prosecutors have been able to be consistently awful with little to no formal, binding oversight.

Nearly 18 months passed between the bill’s introduction and its passage in both chambers of the state legislature. And now it’s awaiting Cuomo’s signature. The issue is so dire that Human Rights Watch wrote an open letter to the governor in support of the bill. “New York currently has no effective system in place to hold prosecutors who violate their legal and ethical duties accountable,” the New York-based group said in its letter.

Human Rights Watch went on to detail case after case of wrongful convictions in the state in which prosecutorial misconduct was the primary cause. In each case, innocent people spent long periods of their lives behind bars for crimes they didn’t commit. Not only did the wrongful convictions and sentences cost the state millions of dollars to incarcerate the wrong people, tens of millions more were spent on settlements to compensate these men.

And yet the prosecutors just keep on handling cases like it never happened. The prosecutor in the Jabbar Collins case was eventually forced to retire because of misconduct, but he never faced any other sanctions. Eventually, he wrote a book that’s now reportedly being made into a TV show. It’s outrageous.

It wasn’t easy to get to this point where New York could pass historic legislation to hold prosecutors to account. Now, one question remains: Will Cuomo sign the bill or veto it?

Pretty much the only people fighting against the bill are prosecutors themselves. The District Attorneys’ Association of the State of New York lobbied hard against it, simply dismissing the measures as unnecessary — which is nonsense because we have seen, as in the Collins case, that far too often these prosecutors are not held to any account at all.

So Cuomo has to decide: Will he side with the people who have been wrongfully convicted because of prosecutorial misconduct — many of whom I’d guess remain in prison, their appeals unheard — or with the prosecutors who get away scot-free for putting the wrong people behind bars?

Trump says he's considering a pardon for Muhammad Ali, whose conviction was overturned

This article by Associated Press writer Jill Colvin was published by the New Orleans Times-Picayune on June 8, 2018.

WASHINGTON -- President Donald Trump said Friday (June 8) he may pardon the late heavyweight boxing champion Muhammad Ali, who doesn't seem to need one. And for futures acts of clemency, he may seek recommendations from pro football players and other athletes who have protested racial injustice by kneeling during the national anthem.

Trump said that "instead of talk," he is going to ask protesting players to suggest "people that they think were unfairly treated by the justice system." The president said football players have "seen a lot of abuse" and "a lot of unfairness" and that he wants their input on his use of this executive power.

Trump told reporters as he left the White House for a meeting with in Canada with U.S. allies that his team was "looking at literally thousands of names" of people for potential pardons because they were treated unfairly or their sentences are too long.

Ali is one name on this list, Trump said, though it was not immediately clear why Ali would need a pardon because he has no criminal record. The Supreme Court overturned his conviction in 1971 for resisting the draft.

Ali was born Cassius Clay, and changed his name after converting to Islam in the 1960s. He refused to serve in the Vietnam War because of his religious beliefs, declaring himself a conscientious objector, and saying, "I ain't got no quarrel with the Viet Cong."

Ali was stripped of his heavyweight crown in 1967. Ali's legal fight ended in 1971, when the Supreme Court ruled in his favor. He regained the boxing title in 1974. Ali died in 2016.

Trump already has granted a posthumous pardon to boxing's first black heavyweight champion, Jack Johnson, more than 100 years after many saw as his racially charged conviction. Johnson was convicted in 1913 by an all-white jury of violating the Mann Act for traveling with his white girlfriend. That law made it illegal to transport women across state lines for "immoral" purposes.

Earlier this week, Trump commuted the life sentence of a woman whose cause was championed by Kim Kardashian West.

Do right, Ohio, by the wrongfully convicted

The following editorial was published by the Beacon Journal/Ohio.com on May 16, 2018.

The state can commit few more grievous errors than wrongfully convicting and imprisoning a man or woman. When discovered, such an error requires swift and adequate compensation, a financial package offering some cushion against the blow of altered lives and lost liberty. In 1986, Ohio took the lead among states when the legislature enacted a process for addressing wrongful convictions.

Unfortunately, the process has broken down, especially since an Ohio Supreme Court ruling in 2014. Now the legislature has an opportunity to advance improvements. House Bill 411 cleared committee with strong bipartisan support last month. It deserves a floor vote this week or next, before lawmakers recess.

What has gone wrong? The story goes back to the initial law, the legislature allowing compensation only for those who proved “actual innocence,” an extremely high standard. So, in 2003, lawmakers made a helpful adjustment. They expanded eligibility to cover wrongful convictions due to “errors in procedure,” or constitutional violations.

The change represented an advance, six of the 31 claims since 2003 involving errors in procedure, the rest going to innocence. Then, Mansaray v. State of Ohio landed before the high court, and the justices seized on a substantial legislative drafting error. The court ruled that as written, the law permitted compensation only for errors in procedure after sentencing and during or after imprisonment.

That all but gutted the advance. Most errors in procedure occur before sentencing.

House Bill 411, sponsored by state Reps. Bill Seitz, a Cincinnati Republican, and Emilia Sykes, an Akron Democrat, provides an overdue correction. It serves someone like Dale Johnston, now age 84, wrongfully convicted in 1982 of murdering his daughter and her boyfriend. He spent six years on death row until an appeals court reversed his conviction. Prosecutors withheld evidence about witnesses who had a different version of the killings.

Johnston sought compensation, but the courts found him unable to prove his innocence. Now he faces the obstacle of the procedural error occurring before sentencing, making him ineligible under the high court ruling.

In the meantime, the actual killers have been identified. Johnson has been waiting nearly three decades for the state to right its wrong. The compensation hardly is excessive at $52,000 for each year wrongfully imprisoned. The state has more than a moral obligation. Its actions have wrecked innocent lives, most at financial bottom when released.

House Bill 411 is narrowly constructed. The error in procedure is limited to those instances when prosecutors commit a constitutional violation in withholding evidence that could benefit the defendant. It allows for offsets if a defendant wins an award in a related civil lawsuit. It establishes eligibility if the prosecution doesn’t file new charges within a year.

All of this deserves the support of prosecutors. Unfortunately, they are not there. That shouldn’t slow the House from approval, sending the measure to the Senate, the state needing to do better by those wrongfully convicted.

VIRGINIA PRISON JUSTICE NETWORK ACTION ALERT

From https://vapjn.wordpress.com/

On Tuesday, April 24, around 5:30 pm, Virginia prisoner advocate Dale Pughsley, aka Askari Danso, was handcuffed by guards and removed from his cell at Sussex II Virginia State Prison, along with his cellmate, Mr. D. Braxton.  Mr. Danso assumed he was being taken to the watch commander, but instead was taken to Sussex I, a higher-level security prison, and put into solitary confinement, without any explanation.

Mr. Pughsley is now being held at Sussex I in 3D 15. His supporters are asking that people call the Unit Manager there and ask why he has been transferred and why he is in being held in solitary. The prison’s phone number is 804-834-9967.

Mr. Pughsley is a well-known, highly respected prisoner-organizer and the founder of VAPOC (Virginia Prisoner of Conscience), a prisoner-led group that works to educate prisoners on their rights and also works from the inside out for prison reform.  VAPOC is sponsored by the Coalition for Justice, a 501c3 in Blacksburg. Mr. Pughsley is on the CFJ steering committee and also is a member of the Richmond-based organization, Virginia Defenders for Freedom, Justice & Equality.

Mr. Pughsley had been at Augusta Correctional Center, a Level 3 security facility, but was transferred to Sussex II, a level 4 facility, on March 2, 2018. Sussex I is a Level 4-5.  He had filed an appeal against his transfer from Augusta to Sussex II, because the reason given for the transfer was without substance. Mr. Pughsley is still waiting for that appeal to be heard.  He believes that his role as an organizer and the fact that he has filed multiple grievances both at Augusta and at Sussex II is the real reason for transfers to successively higher-level security facilities, which has now landed him in solitary at Sussex I.

Mr. Pughsley has launched over 30 grievances to the Virginia Department of Corrections. The most recent challenges, while at Sussex II, were over mental health for long-term offenders, water quality, grievance procedures, access and upkeep of the law library, prisoner rights to access the court, and property transfer issues. He also created a Sussex II Human Rights Committee in order, not just to educate prisoners on their rights, but to work in a coordinated way to make sure their rights are observed. At Augusta Correctional, he launched grievances regarding religious freedom, racial justice issues, free speech issues, and the grievance procedures for prisoners.

Mr. Pughsley has not been accused of any prison violations since 2009, which involved a cell phone case.  His repeated transfer to higher-security facilities is extremely troubling.  No explanation has been given for his transfer and, as he has not violated prison rules, the transfer to Sussex I is illegal.  In what appears to be an emergency transfer, the Regional Administrator may authorize a temporary transfer to any equal or higher security level institutional bed. Such decisions may be made for security and health reasons only, and must conform to the definition of Emergency Transfer in Operating Procedure 830.5 (11/1/14).  Mr. Pughsley is not a security risk, as he has no infractions against him. Emergency transfers can only be done when it has been found necessary to protect offenders and staff from imminent danger of physical harm, or to prohibit offenders from destruction of State property, and/or escape. This does not apply to Mr. Pughsley. 

All temporary, emergency transfer decisions are subject to review and approval by CCS (Central Classification Services), and the institutional administrator must provide a detailed written explanation of the rationale for the offender’s assignment to segregation/ restrictive housing, and the need for their immediate transfer from the current housing institution,  Mr. Danso was given no such explanation. He was also not given his personal property.We call on the CSS to provide an explanation for the transfer of Mr. Pughsley and Mr.Braxton and for Mr. Pughsley to be removed from solitary confinement and have access to his personal property.

For more information, contact VAPJN members Margaret Breslau at justicebburg@gmail.com or Phil Wilayto at: DefendersFJE@hotmail.com.

The latest California death row exoneration shows why we need to end the death penalty

The following editorial by the Los Angeles Times Editorial Board was published on April 27, 2018.

A Kern County Superior Court judge last week ordered that a 68-year-old former farmworker, Vicente Benavides Figueroa, be released from San Quentin's death row after the local district attorney declared she would not retry him. Benavides had been in prison for more than 25 years after being convicted of raping, sodomizing and murdering his girlfriend's 21-month-old daughter.

Benavides was freed after all but one of the medical experts who testified against him recanted their conclusions that the girl had, in effect, been raped to death — conclusions they had reached after reviewing incomplete medical records. In fact, the first nurses and doctors who examined the semiconscious and battered girl in 1991 observed no injuries suggesting she had been raped or sodomized, but those details were not passed along to the medical expert witnesses who testified in court. Injuries later observed at two other hospitals were likely caused by that first effort to save her life, which included attempts to insert an adult-sized catheter.

Convicting Benavides was an egregious miscarriage of justice; he spent a quarter-century on death row for a crime he apparently did not commit. His exoneration serves as a reminder of what ought to be abundantly clear by now: that despite jury trials, appellate reconsideration and years of motions and counter-motions, the justice system is not infallible, and it is possible (or perhaps inevitable) that innocent people will end up facing execution at the hands of the state. Not all of them will be saved, as Benavides was.

The case also ought to remind us of the dangers inherent in California's efforts to speed up the calendar for death penalty appeals under Proposition 66, which voters approved in 2016. Moving more quickly to execute convicted death row inmates increases the likelihood that due process will be given short shrift and the innocent will be put to death. Benavides — described in court filings as a seasonal worker with intellectual disabilities — was convicted in 1993. But the records that blew up the case against Benavides, but also raised doubt that Consuelo Verdugo had been murdered at all, were not uncovered until about 2000. Proposition 66 makes it less likely that such diligent research can be completed in the single year it gives appellate attorneys to file their cases (a process that currently consumes three years or more), and thus more likely that innocent people will be put to death.
This rush-to-execute mood isn't California's alone. Florida adopted its own speed-up legislation five years ago. And around the country, pro-death penalty advocates argue that the condemned take advantage of the appeals process to delay their executions. Federal statistics for 2013, the last year available, show an average of 15 1/2 years between sentence and execution for people on death row in the U.S. At least 365 people have been on California's death row for 20 years or more.

Benavides was released after more than 25 years. Two half-brothers in North Carolina spent about 30 years under death sentences before they were exonerated. Since the Supreme Court revived the death penalty in 1976, more than 150 people have been exonerated of the murders for which they were condemned (in most cases that also meant the real killers got away with it), with an average of more than 11 years between sentence and exoneration. A 2014 study published in the Proceedings of the National Academy of Sciences estimated that at least 4% of the people sitting on America's death rows are probably innocent. With a national death row population of 2,700 people, that means more than 100 people currently under death sentences probably are innocent — about 30 of them in California. A rush to execution will only increase the chances that state governments will execute the innocent in the name of the people.

The unfixable problem with the death penalty is that mistakes get made, witnesses lie, confessions get coerced — all factors that can lead to false convictions. It is abjectly immoral to speed things up by limiting due process. The better solution is to get rid of the death penalty altogether.

Innocent, But In Jail: Exonerations Where ‘Justice’ Has Failed

The following op-ed by Toni Messina was published on March 19, 2018 by Above the Law.

If the initial prosecution of defendants was more fair, fewer innocent people would wind up in jail.

It’s no surprise that innocent people get convicted of crimes they never committed.

While our jury system is a great one, mistakes can happen.  Sometimes by chance, like mistaken identifications; sometimes by plan — people bribing witnesses to lie, prosecutors withholding exculpatory information, police planting information on suspects.

Imagine the agony of being wrongfully convicted.  Not only does the person have to suffer the horrors of being incarcerated while knowing he did nothing wrong, but decades of his life are lost to a system where “justice” failed.

That’s why keeping tabs on data regarding exonerations is vital.  In which states were the most people exonerated?  What were the reasons innocent people were found guilty, especially those facing the death penalty?  What can be done to limit the chances of more innocent people going to jail?

Last week, the National Registry of Exonerations released two reports — one covering exonerations in 2017, the other listing exonerations from 1820 through 1988.

And while it’s a great start — many people are being exonerated – boy, is there room for improvement.

Some of the major takeaways:

–  Science sometimes gets it wrong. (Remember when lie detectors were considered infallible? Today their results are no longer permitted into evidence.) Bad science has been a big contributor to wrongful convictions.  Take Ledura Watkins, from Michigan.  He was convicted of murdering a school teacher based on a single hair found at the crime scene that investigators believed had microscopic similarities to his own hair.  Later, the FBI discredited the comparison process.  Watkins was released from jail after serving 41 years!

Other debunked science includes: “shaken baby” injuries which led to wrongful convictions of parents and babysitters; fingerprint analysis — no longer foolproof (depends on how clean the fingerprinted lifted and the number of points of comparison). Even DNA analysis, once believed to be the sine qua non of evidence to show that someone was at the scene of a crime, is consistently being tweaked in recognition that past analysis methods were flawed.

–    Official misconduct plays a big role.  The report breaks down into categories the reasons for wrongful convictions.  They include: mistaken identification, witness perjury, inadequate legal defense, false or misleading forensic evidence, false confessions, and official misconduct.

Of these categories a majority of the exonerations last year were due to official misconduct. Eighty-four of the 139 exonerations involved wrongful behavior by police, prosecutors, and other government officials.  That misconduct takes the form of false arrests, falsifying paperwork, lying to defendants to elicit false confessions, hiding exculpatory evidence, and police perjury on the stand.

Some forward-thinking prosecutors offices are developing their own exoneration units where, in-house, they look at cases proffered as wrongful convictions and (with the help of outside exoneration offices like the Innocence Project or EXI) determine whether there’s enough evidence to cast doubt on the justness of a conviction.

What starts the ball rolling is generally letters from defendants, or recanted eye witness testimony.  Attorneys can ask to re-test DNA (or check for DNA if it was never done) which might, say, exclude a defendant’s sperm from a rape case.

Where a number of letters accuse one particular cop of misconduct, a prosecutors office might start looking into the entire backlog of that cop.

This is what happened in the Brooklyn District Attorney’s office in relation to former detective Louis Scarcella. As of Oct. 2017, 12 convictions in which he played a role have been overturned.  The detective’s overzealous acts included coaching witnesses to testify against defendants, inventing and coercing confessions, and arresting people for no reason, then falsifying evidence against them.  The Brooklyn DA’s Office is looking into some 70 of his cases.

While the amount of exonerations have generally grown higher year to year, the numbers do not reflect how many wrongful convictions are in the system.  Many cases never see the light of day.  Whether the defendant has passed away, doesn’t have the wherewithal to contact an attorney, or because there are so many thousands of these claims of innocence, many just don’t get the attention of a prosecutor or exoneration initiative.

Most of these people still languish in jail. The reality is there are far more cases that should be looked into than lawyers ready to handle the work.   (It’s clear from statistics that defendants with lawyers backing them have the best chances of winning an exoneration.)

Prosecutors offices around the country (and even public defender organizations where time and budget permits) should think about designating specialized units for this work.  Thousands of men and women claim to have been wrongfully convicted each year.  It takes time, money, and a fine hand to determine which cases have a basis in fact and which are merely wishful thinking.

Of course, if the initial prosecution of defendants was more fair, fewer innocent people would wind up in jail.  There are many facets that could be improved, but my top two would be:

1) Make the initial interrogation of suspects more transparent.  To avoid false confessions (a large source of wrongful convictions), impose a protocol that all such questioning be videotaped from the initial “Hello, I’m Det. So-and-So” to the Miranda reading through the close of questioning.  Such a measure will put police on notice that their tactics (lying to suspects, promising to release them, etc.) are being watched.

2) Provide defense attorneys with open-file discovery (information about the prosecution’s case) early on in the game, and not just a day before trial (as is done in New York).  That way, if leads need to be developed that might point to an alternate suspect or theory of the case — it can be done promptly and fairly, reducing the chances of a wrongful conviction.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

What Criminal Justice Can Learn From Its Bad Outcomes

The following commentary by James Doyle and Rianna P. Starheim was published by Governing on February 5, 2018.

In Milwaukee, an offender committed murder while released on supervision. In Seattle, questions remained over how a deadly police encounter unfolded. In New York City, fatigued officers made questionable decisions during a routine traffic stop. We can agree that these scenarios reflect system failings. However, the criminal justice system lacks a mechanism to examine these events and effectively prevent their recurrence.

When a significant negative outcome, or "sentinel event," happens in the criminal-justice system, it is rarely the result of a single actor or mistake. Rather, many small misjudgments, oversights and other errors compound to create a context in which a death in custody, a wounded police officer, a failure to provide sufficient probationary supervision or other negative event can occur.

Traditionally, the American criminal-justice system has taken a "bad apple" approach to error that assigns blame after a negative event. Although focusing on individual performance is appropriate in some instances, this approach fails to address the multiple system flaws that may have contributed to a problem. Errors are often caused by many individuals making decisions based on what they see as the best course of action in a given set of circumstances. Often, systems have set up these front-line actors to fail. If we merely punish a single individual without examining larger systemic issues, we miss a crucial opportunity to learn from error and prevent future negative outcomes.

Shifting the criminal-justice culture away from blame and toward safety and improvement is the goal of the National Institute of Justice's Sentinel Events Initiative, which mobilizes a system-oriented approach to error. This is not a "one-size-fits-all-jurisdictions" federal effort. Rather, the Sentinel Events Initiative supports the local development of a review process in which all actors -- law-enforcement officers, prosecutors, judges, victims, advocates and others -- conduct a forward-looking review of a sentinel event to identify and mend contributing system weaknesses.

Rather than simply assigning blame, these reviews ask the question, "How can we keep this from happening again?" Reviews have been implemented to examine the near-miss prosecution of a father wrongly accused, but then cleared, of murder in Illinois; a homicide committed by a minor under supervision in Milwaukee; and wrongful-conviction cases in New York City.

Although it is impossible to put a price tag on justice-system failings, scattered studies give a sense of the magnitude of the cost to taxpayers. Texas, which has paid more than $93 million in compensation, has one of the most generous compensation statutes for wrongfully convicted individuals, allowing a lump-sum payment equal to $80,000 for each year an individual was wrongfully incarcerated as well as monthly annuity payments. Illinois has spent more than $250 million on wrongful convictions, including $156 million for legal settlements. In addressing factors that will eliminate the need for future compensation and lawsuits, sentinel-event reviews can help mitigate these costs, as well as the unquantifiable impact on the lives of the wrongfully convicted, the toll sentinel events can take on officer welfare, and the danger of the real perpetrators walking free.

The Sentinel Events Initiative draws inspiration from medicine and aviation, which have used these reviews to increase safety, lower costs and instill a culture of continuous improvement. As one seminal patient-safety paper put it, these reviews take the approach that "every defect is a treasure."

After years of scientific research, practitioner outreach and pilot efforts, last month the National Institute of Justice launched a $1.6 million national sentinel-event demonstration project in partnership with the Bureau of Justice Assistance. This project will enable state and local sentinel-event review panels across the country to learn how to best empower jurisdictions to explore system weaknesses and generate locally tailored solutions to mitigate risk and improve system-wide performance.

In Milwaukee, an offender committed murder while released on supervision. In Seattle, questions remained over how a deadly police encounter unfolded. In New York City, fatigued officers made questionable decisions during a routine traffic stop. We can agree that these scenarios reflect system failings. However, the criminal justice system lacks a mechanism to examine these events and effectively prevent their recurrence.

When a significant negative outcome, or "sentinel event," happens in the criminal-justice system, it is rarely the result of a single actor or mistake. Rather, many small misjudgments, oversights and other errors compound to create a context in which a death in custody, a wounded police officer, a failure to provide sufficient probationary supervision or other negative event can occur.

Traditionally, the American criminal-justice system has taken a "bad apple" approach to error that assigns blame after a negative event. Although focusing on individual performance is appropriate in some instances, this approach fails to address the multiple system flaws that may have contributed to a problem. Errors are often caused by many individuals making decisions based on what they see as the best course of action in a given set of circumstances. Often, systems have set up these front-line actors to fail. If we merely punish a single individual without examining larger systemic issues, we miss a crucial opportunity to learn from error and prevent future negative outcomes.

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Shifting the criminal-justice culture away from blame and toward safety and improvement is the goal of the National Institute of Justice's Sentinel Events Initiative, which mobilizes a system-oriented approach to error. This is not a "one-size-fits-all-jurisdictions" federal effort. Rather, the Sentinel Events Initiative supports the local development of a review process in which all actors -- law-enforcement officers, prosecutors, judges, victims, advocates and others -- conduct a forward-looking review of a sentinel event to identify and mend contributing system weaknesses.

Rather than simply assigning blame, these reviews ask the question, "How can we keep this from happening again?" Reviews have been implemented to examine the near-miss prosecution of a father wrongly accused, but then cleared, of murder in Illinois; a homicide committed by a minor under supervision in Milwaukee; and wrongful-conviction cases in New York City.

Although it is impossible to put a price tag on justice-system failings, scattered studies give a sense of the magnitude of the cost to taxpayers. Texas, which has paid more than $93 million in compensation, has one of the most generous compensation statutes for wrongfully convicted individuals, allowing a lump-sum payment equal to $80,000 for each year an individual was wrongfully incarcerated as well as monthly annuity payments. Illinois has spent more than $250 million on wrongful convictions, including $156 million for legal settlements. In addressing factors that will eliminate the need for future compensation and lawsuits, sentinel-event reviews can help mitigate these costs, as well as the unquantifiable impact on the lives of the wrongfully convicted, the toll sentinel events can take on officer welfare, and the danger of the real perpetrators walking free.

The Sentinel Events Initiative draws inspiration from medicine and aviation, which have used these reviews to increase safety, lower costs and instill a culture of continuous improvement. As one seminal patient-safety paper put it, these reviews take the approach that "every defect is a treasure."

After years of scientific research, practitioner outreach and pilot efforts, last month the National Institute of Justice launched a $1.6 million national sentinel-event demonstration project in partnership with the Bureau of Justice Assistance. This project will enable state and local sentinel-event review panels across the country to learn how to best empower jurisdictions to explore system weaknesses and generate locally tailored solutions to mitigate risk and improve system-wide performance.

In viewing negative outcomes as opportunities for learning, local policy influencers can shift the focus of the criminal-justice system away from blame and toward safety and system improvement. In doing so, they have a genuine opportunity reduce risk, save taxpayer money, earn public trust and improve the future administration of justice.

The findings and conclusions in this commentary are those of the authors and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

James Doyle | Contributor | 1jamesdoyle@gmail.com 
Rianna P. Starheim | Contributor | Rianna.Starheim@ojp.usdoj.gov 

Rebalancing the scales: open NY criminal discovery to give defendants a fair shot

The following opinion was published by the New York Daily News on January 22, 2018.

The scales of justice are skewed against criminal defendants in New York’s courts by prosecutors’ power to keep key evidence in the dark. Of this, a wave of wrongful convictions overturned leaves no doubt.

New York presently has among the nation’s most woefully lax laws of discovery, the process by which district attorneys deliver the likes of surveillance videos, police reports, medical tests and grand jury transcripts to the defense.

It’s at the heart of what makes criminal courts fair: equal access to information, so the accused is fully aware of, and can scrutinize and challenge, the case against him or her.

Into a wide gulf between the revolution demanded by defense attorneys and DAs’ grudging acknowledgment reform may be due, Gov. Cuomo stepped up last week by including in the state budget a bill that would at long last make sure prosecutors share their evidence with defense attorneys promptly and in full.

The state Legislature must not miss this moment to make surprise witnesses, last-minute data dumps and other prosecution games a thing of the past — with a keen eye to demanding DAs share as much information with the defense as quickly as possible.

Look to Brooklyn, once a factory line of discovery abuse and the wrongful convictions that come of it. Now the Kings County DA is a model for the state — sharing files, including witness details, ASAP, with reasonable exceptions where safety is at risk. Meanwhile crime in the borough continues its decline.

New York DAs more typically heed federal law requiring them to turn over information favorable to the defendant well ahead of trial. For anything else, just about anything goes, and that means some prosecutors wait until the very last minute to dump a pile of evidence on the desks of typically overloaded defense attorneys.

The prosecution’s witnesses? Good luck finding them before they’re on the stand.

Because most defendants end up striking plea bargains instead of facing a jury, many agree to conviction and sentencing without the faintest sense of what prosecutors may have had in store for them, even if it’s evidence not fit to wrap fish in.

Cuomo wants to make prosecutors’ disclosure of materials to the defense automatic, with a succession of swift and strict deadlines, starting 15 days after arraignment .

Progress! Now keep going. Wide latitude Cuomo’s bill gives DAs to withhold witness and other information they claim could compromise a case could put just about any evidence off limits. Brooklyn shows prosecutors can do so much better than keep their cards hidden.

Albany lawmakers should see Cuomo and raise him one.

When Prosecutors are "Innocence Deniers"

January 13, 20187:51 AM ET
Heard on Weekend Edition Saturday
Lara Bazelon writes in Slate that prosecutors who won't admit mistakes are 'innocence deniers." She tells NPR's Scott Simon why she thinks some prosecutors actively work against justice.

TRANSCRIPT:

SCOTT SIMON, HOST:

Kym Worthy is known mainly for her work on the backlog of rape kits. She's been lead prosecutor in Wayne County for more than 13 years. And after we taped our interview with her, Lara Bazelon published a piece in Slate magazine that is critical of Kym Worthy's record on the exoneration of wrongful convictions. Worthy is one of a group of prosecutors Lara Bazelon describes as, quote, "innocence deniers." She joins us now from San Francisco.

Thanks so much for being with us.

LARA BAZELON: Thank you for having me.

SIMON: These aren't prosecutors that are just naturally reluctant to overturn convictions they've won but actively opposing exoneration. What makes someone an innocence denier, in your judgment?

BAZELON: They have to be extreme. So they don't simply oppose a wrongful conviction claim - because some claims are bogus or murky and they have to be investigated. Instead, when confronted with overwhelming evidence that the person is innocent, they refuse to let go of the conviction, and they will fight for years through the appellate courts. They will publicly declare their belief that the person is guilty.

SIMON: Let's talk about one case in particular because you spent some time speaking with Kym Worthy about a couple of cases. Let's ask about Davontae Sanford's case. Very briefly, what happened?

BAZELON: What happened was there was this terrible murder in a house on Runyon Street. It was called the Runyon Street murders. Four people were killed. And the police set their sights on a 14-year-old named Davontae Sanford. He was young. He was alone. He was developmentally disabled.

And they got him to admit to what he said was, quote, "something" with his understanding that he would be let go. He ended up signing a confession to the murders. He was indicted. His attorney, who was guilty of all sorts of misconduct, ended up, in the middle of trial, having Davontae plead guilty to the four murders and get an extremely long sentence.

Eighteen days after he pled guilty - or maybe 16 days - the actual killer, a guy named Vincent Smothers, confessed to the Detroit Police that he had carried out these four murders and eight other murders at the behest of a hitman. So the Detroit Police, even though they had this evidence, didn't free Davontae Sanford. And at some point, the evidence leaked out. I think that was in 2009. And at that point, he started fighting to be released and was opposed at every turn by Prosecutor Worthy.

SIMON: We contacted Prosecutor Worthy, who didn't come in for another interview. But she - there is this statement. And let me read it.

(Reading) It should be pointed out that the Runyon Street homicides remain under active investigation. This office dismissed the case against Sanford because we were unable to retry the case. This dismissal is not the same as exoneration. It must be emphasized that Vincent Smothers has had several opportunities to testify under oath to exonerate Sanford but each time has refused.

So how do you respond to that?

BAZELON: It's hard to know what to make of that statement. My first response is that the attorney general - so the top prosecutor of the state of Michigan - has found that Davontae Sanford is innocent and has accepted that fact and agreed to award him over $400,000 in compensation. Vincent Smothers has declared that he is guilty and has said in a sworn affidavit that Davontae Sanford had nothing to do with it. My understanding is that none of the people to whom Smothers pointed have been prosecuted or indeed will be prosecuted by Kym Worthy.

SIMON: Every now and then over the years, I've talked to prosecutors about exoneration cases. And they often say, look, they were legally convicted by a jury. The conviction was upheld on appeal. You can't make the legal system work if it's vulnerable to people showing up years after the fact sometimes, changing their testimony or even confessing - because that can be problematic.

BAZELON: It's true that our system does prize this idea of finality, which is 12 people came back and convicted, and then an appellate court upheld it, and then another appellate court upheld that. And we should just stop letting people come back and get second and third bites at the apple. But it's also true that people confess falsely. And some trials are fundamentally unfair because, for example, prosecutors don't turn over all the evidence, and some of it tends to indicate the person didn't do it.

And in those cases, when it becomes obvious that any or all of these things have happened, there has to be some kind of a recourse. And our legal system does provide that recourse, provided that prosecutors don't stand in the way.

SIMON: Recognizing there might be more than one answer to this, why would a prosecutor oppose exoneration?

BAZELON: People think, who've studied it, that it's a combination sometimes of tunnel vision and confirmation bias that you basically look at the new evidence and you discard it as being inconsistent with what you already believe to be true. And then I also think that there's a psychological price that's high, which is admitting to a devastating error. Even if it was an error made by one's predecessor, it's still conceding that the justice system failed in a way that is so profound and stole a huge part of someone else's life. And I think facing up to that consequence is very painful, and people will do anything they can to turn away from it.

SIMON: Laura Bazelon, associate professor at the University of San Francisco School of Law and contributing writer for Slate - thanks so much.

BAZELON: Thank you so much for having me.

(SOUNDBITE OF DJ OKAWARI'S "LUV LETTER")

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Commentary: Prosecutors need to be held accountable for wrongdoing

The following commentary by Molly Davis was published by the Salt Lake Tribune on January 13, 2018.

Michael Morton sat in prison for 25 years before he was exonerated. Convicted for murdering his wife, he was freed when DNA evidence later implicated the actual murderer. The prosecutor in the case, Ken Anderson, used his power to intentionally withhold important evidence from the courtroom that led to the wrongful conviction.

Anderson watched as the judge sent Morton to prison without having considered all the evidence. He spent the next 25 years living happily as a free man, advancing his career and becoming a successful judge — all while Morton lived out the prime years of his life confined to a prison cell. Once the evidence was later discovered, the only punishment Anderson received was 10 days in jail, 500 hours of community service, and a loss of his law license. He was released after only five days for “good behavior.”

Although Anderson’s punishment is small compared to ruining someone’s life, the fact that a prosecutor received any sort of punishment for misconduct is actually quite shocking. Usually, prosecutors get off scot free.

Here in Utah, there is no law that holds prosecutors accountable for withholding exculpatory evidence — material that may be favorable to the defendant. There are ethical standards from the American Bar Association, but no criminal consequences, meaning that prosecutors can potentially engage in significant misconduct and only other attorneys will hold them accountable, if at all.

California changed their approach with a recently enacted law that holds prosecutors accountable for withholding evidence from the court. Now it is a felony crime for which prosecutors can spend up to three years in prison.

The lack of prosecutorial accountability is especially concerning when considering how many wrongful convictions involve prosecutorial misconduct. Out of all the exonerations in the United States in 2016, for example, 42 percent of them involved misconduct.

A prosecutor’s power goes largely unchecked on multiple levels. Prosecutors have the power to review all evidence before charging a person, decide which charges they will pursue, tarnish reputations (wrongful charges often ruin a person’s reputations), write and negotiate plea deals, and choose punishments for defendants. Their only real oversight, if it can be called such, comes from the courts and the state bar.

One recent analysis found that “Utah’s prosecutors are rarely disciplined, even as complaints of misconduct are brought to light during court proceedings.” There were 18 different acts of prosecutorial misconduct which Utah courts weighed in on since 2015, yet no legal action was taken against any of the prosecutors involved. However, some of these defendants were granted new trials—showing merit to the findings of misconduct in these cases.

Why would a prosecutor intentionally withhold exculpatory evidence if their job is to supposedly seek justice? If the evidence pointed to someone other than the charged individual, one would think they would want to present that evidence so they can convict the correct person.

The truth is, prosecutors have perverse incentives to win cases. The more convictions they secure, the more of a distinguished name they make for themselves—making it easier to attain a higher position (such as a judge) or get a distinguished job at a private law firm. These incentives may tempt some prosecutors to use unethical tactics that may help them win their case.

Another reason for increasing accountability is that innocent people who have been wrongfully convicted due to prosecutorial misconduct almost never have a decent civil remedy due to immunity laws that shield prosecutors from punishment for their wrongful actions, including intentional misconduct, in almost any case brought against them.

Prosecutors should be held to a high level of accountability—not just from their peers at the Bar Association, but under the law as well. As one can see in the case of Michael Morton, withholding exculpatory evidence from the courtroom can be extremely damaging for the defendant. Justice cannot prevail when this unethical behavior is allowed to occur.

To help ensure that Morton’s experience is not shared by any Utahn, withholding exculpatory evidence should be made a felony in Utah. A prosecutor’s job is to serve the public and do everything in their power to ensure justice in every criminal prosecution. When they fail to do so, they need to be held responsible for their actions — just like the defendants they prosecute each day.