Tuesday, March 20, 2018

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.

Tuesday, February 06, 2018

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 


Tuesday, January 23, 2018

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.

Sunday, January 14, 2018

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.