tag:blogger.com,1999:blog-276875832024-02-03T07:13:59.950-05:00Truth in Justice FilesTruth in Justice Files is the editorial adjunct to Truth in Justice, the organization and website founded to educate the public about the criminal conviction of wholly innocent people. The website is at www.truthinjustice.org.Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.comBlogger403125tag:blogger.com,1999:blog-27687583.post-79324698685434133472018-09-19T20:41:00.001-05:002018-09-19T20:43:26.144-05:00The murder evidence evaporated, but Jeffrey Havard still sits in a Mississippi prisonThe following opinion by Radley Balko was published by the Washington Post on September 19, 2018.<br />
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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.<br />
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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.<br />
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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:<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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Before I get to Johnson’s short opinion, there are a few other things about Havard’s trial that are worth mentioning:<br />
<ul>
<li>Havard’s attorneys asked the trial court for funding to hire an independent medical examiner to conduct a second autopsy. They were denied.</li>
</ul>
<ul>
<li>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.</li>
</ul>
<ul>
<li>The entire trial — jury selection, trial, deliberation, verdict, sentencing trial, deliberation, verdict and death sentence — lasted just two days.</li>
</ul>
<ul>
<li>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.”</li>
</ul>
<ul>
<li>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.</li>
</ul>
<ul>
<li>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.</li>
</ul>
<ul>
<li>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.</li>
</ul>
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.<br />
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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.<br />
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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.<br />
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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:<br />
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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.<br />
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Johnson then orders a new sentencing trial for Havard.<br />
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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.)<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-58833172137998139732018-08-05T06:41:00.002-05:002018-08-05T06:41:42.745-05:00Take it from Pope Francis and Illinois: the death penalty should goThe following editorial by the Chicago Sun-Times was published on August 2, 2018.<br />
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Take it from Illinois, the death penalty is a moral embarrassment.<br />
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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.<br />
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That alone stands as a powerful argument in support of Pope Francis’ call on Thursday for the abolishment of the death penalty worldwide.<br />
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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.”<br />
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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.<br />
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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.<br />
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Yet, for all of that, the system never worked flawlessly, and it had to work flawlessly.<br />
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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.<br />
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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.<br />
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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.<br />
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Capital punishment should be added to that list of banished barbarisms.<br />
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<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-12312165270644156482018-08-05T06:38:00.003-05:002018-08-05T06:38:29.762-05:00Prosecutors must be held accountable for misconductThe following opinion by Alanah Odoms Hebert was published by the New Orleans Times-Picayune on August 3, 2018.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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?<br />
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Prosecutors' unchecked power to win at all costs must not remain unchecked. Innocent lives are at stake.<br />
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<i>Alanah Odoms Hebert is executive director of ACLU Louisiana.</i><br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-76878639264481455312018-06-24T08:39:00.002-05:002018-06-24T08:39:29.162-05:00America’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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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Jabbar Collins comes to mind.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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?<br />
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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.<br />
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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?<br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-26404876294349416052018-06-09T09:31:00.000-05:002018-06-09T09:31:01.129-05:00Trump says he's considering a pardon for Muhammad Ali, whose conviction was overturnedThis article by Associated Press writer Jill Colvin was published by the New Orleans Times-Picayune on June 8, 2018.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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."<br />
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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.<br />
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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.<br />
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Earlier this week, Trump commuted the life sentence of a woman whose cause was championed by Kim Kardashian West.Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-78640648952433932442018-05-18T04:34:00.001-05:002018-05-18T04:34:21.771-05:00Do right, Ohio, by the wrongfully convictedThe following editorial was published by the Beacon Journal/Ohio.com on May 16, 2018.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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That all but gutted the advance. Most errors in procedure occur before sentencing.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-21683247326972728532018-05-07T12:17:00.004-05:002018-05-07T12:17:46.468-05:00VIRGINIA PRISON JUSTICE NETWORK ACTION ALERTFrom <a href="https://vapjn.wordpress.com/">https://vapjn.wordpress.com/</a><br />
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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.<br />
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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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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. <br />
<br />
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.<br />
<br />
For more information, contact VAPJN members Margaret Breslau at justicebburg@gmail.com or Phil Wilayto at: DefendersFJE@hotmail.com.Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-74086037044125673422018-04-28T14:27:00.000-05:002018-04-28T14:27:00.177-05:00The latest California death row exoneration shows why we need to end the death penaltyThe following editorial by the Los Angeles Times Editorial Board was published on April 27, 2018.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-39721616031404325152018-03-20T13:53:00.005-05:002018-03-20T13:53:48.630-05:00Innocent, But In Jail: Exonerations Where ‘Justice’ Has FailedThe following op-ed by Toni Messina was published on March 19, 2018 by Above the Law.<br />
<br />
If the initial prosecution of defendants was more fair, fewer innocent people would wind up in jail.<br />
<br />
It’s no surprise that innocent people get convicted of crimes they never committed.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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?<br />
<br />
Last week, the National Registry of Exonerations released two reports — one covering exonerations in 2017, the other listing exonerations from 1820 through 1988.<br />
<br />
And while it’s a great start — many people are being exonerated – boy, is there room for improvement.<br />
<br />
Some of the major takeaways:<br />
<br />
– 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!<br />
<br />
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.<br />
<br />
– 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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
Where a number of letters accuse one particular cop of misconduct, a prosecutors office might start looking into the entire backlog of that cop.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.)<br />
<br />
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.<br />
<br />
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:<br />
<br />
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.<br />
<br />
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.<br />
<br />
<i>Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: <a href="https://twitter.com/tonitamess">@tonitamess</a>.</i><br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-77499120777023709502018-02-06T05:08:00.000-05:002018-02-06T05:08:03.680-05:00What Criminal Justice Can Learn From Its Bad OutcomesThe following commentary by James Doyle and Rianna P. Starheim was published by Governing on February 5, 2018.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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."<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
RELATED<br />
Police Departments Grapple With Who Should Hold Them Accountable Murder, Scandal and a State Intervention: What's Going on With Baltimore's Police Department? Civilian Oversight Appeals to Many, But Is It Always Effective? After Reforming Criminal Justice, Alaska Has Second Thoughts Justice Department Ends Era of Pushing Police Reform<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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."<br />
<br />
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.<br />
<br />
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.<br />
<br />
<i>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.</i><br />
<i><br /></i>
<i>James Doyle | Contributor | <a href="mailto:1jamesdoyle@gmail.com">1jamesdoyle@gmail.com</a> </i><br />
<i>Rianna P. Starheim | Contributor | <a href="mailto:Rianna.Starheim@ojp.usdoj.gov">Rianna.Starheim@ojp.usdoj.gov</a> </i><br />
<i><br /></i>
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-6509400320633409322018-01-23T05:55:00.002-05:002018-01-23T05:55:52.120-05:00Rebalancing the scales: open NY criminal discovery to give defendants a fair shotThe following opinion was published by the New York Daily News on January 22, 2018.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
The prosecution’s witnesses? Good luck finding them before they’re on the stand.<br />
<br />
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.<br />
<br />
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 .<br />
<br />
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.<br />
<br />
Albany lawmakers should see Cuomo and raise him one.Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-54486224317226322202018-01-14T11:57:00.000-05:002018-01-14T11:57:01.109-05:00When Prosecutors are "Innocence Deniers"January 13, 20187:51 AM ET<br />
Heard on Weekend Edition Saturday<br />
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.<br />
<br />
TRANSCRIPT:<br />
<br />
SCOTT SIMON, HOST:<br />
<br />
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.<br />
<br />
Thanks so much for being with us.<br />
<br />
LARA BAZELON: Thank you for having me.<br />
<br />
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?<br />
<br />
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.<br />
<br />
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?<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
SIMON: We contacted Prosecutor Worthy, who didn't come in for another interview. But she - there is this statement. And let me read it.<br />
<br />
(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.<br />
<br />
So how do you respond to that?<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
SIMON: Recognizing there might be more than one answer to this, why would a prosecutor oppose exoneration?<br />
<br />
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.<br />
<br />
SIMON: Laura Bazelon, associate professor at the University of San Francisco School of Law and contributing writer for Slate - thanks so much.<br />
<br />
BAZELON: Thank you so much for having me.<br />
<br />
(SOUNDBITE OF DJ OKAWARI'S "LUV LETTER")<br />
<br />
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NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-84473232637070850012018-01-14T10:47:00.003-05:002018-01-14T10:47:45.705-05:00Commentary: Prosecutors need to be held accountable for wrongdoingThe following commentary by Molly Davis was published by the Salt Lake Tribune on January 13, 2018.<br />
<br />
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.<br />
<br />
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.”<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-33377464919630495752017-10-01T04:16:00.000-05:002017-10-01T04:16:16.106-05:00Rethink death penalty in light of widespread government misconductThe following guest commentary by James Castle and Jonathan Repucci was published by the Denver Post on September 29, 2017.<br />
<br />
The post-conviction review court has made findings in the Sir Mario Owens case. It is now established as fact that prosecutors deliberately and/or recklessly allowed two key witnesses for the state to present false evidence to the jury and, “with no legal justification,” failed to correct those falsehoods.<br />
<br />
It is also now established as fact that prosecutors failed to disclose exculpatory evidence (i.e., evidence that points to a defendant’s innocence or impeaches the credibility of the witnesses against him) in more than 20 instances, concerning no fewer than 10 state witnesses. At the prosecution’s urging, the court found that these facts — somehow — do not merit relief.<br />
<br />
We beg to differ and trust that the Colorado Supreme Court or the federal courts will reach different conclusions. Facts matter. Justice depends on getting basic principles right. When the government uses improper tactics to distort the truth and to hide evidence, stark moral clarity is demanded.<br />
<br />
Other courts have recognized that when prosecutors behave with disregard for their constitutional obligations, it erodes public trust in our justice system, and chips away at the foundational premises of the rule of law. When courts acknowledge, yet forgive such transgressions, they invite their repetition.<br />
<br />
Our criminal justice system becomes inherently vulnerable when prosecutors present false evidence and hide exculpatory evidence. Systemic failings cause innocent people to be wrongly convicted and executed.<br />
<br />
Colorado’s legislature established post-conviction review to ensure that if our state is ever going to execute a citizen in its name, then the process needs to be acutely trustworthy. The post-conviction court determines whether police and prosecutors disclosed all of the evidence in the case. Government misconduct is a primary cause of wrongful convictions and, once exposed, a leading factor in exonerations.<br />
<br />
In the overwhelming number of criminal cases, Colorado’s district attorneys practice an open file policy — meaning they open their entire file for defense inspection. But the 18th Judicial District’s office does not adhere to an open file policy. A judge previously threw out the conviction of another capital defendant because that office hid exculpatory evidence. The court has now confirmed that the practice continued in Owens.<br />
<br />
The post-conviction court has now found that both police and prosecutors hid vast amounts of exculpatory evidence. Records showed that the DA’s office funneled thousands of dollars to their witnesses. Prosecutors worked secret deals that enabled witnesses to avoid lengthy incarceration in exchange for testimony. Prosecutors even promised one key witness a car bought by taxpayers. The car was delivered after the trial. The DA’s office allowed witnesses with criminal convictions to abscond from probation or commit new crimes with no consequences, so long as they testified in the prosecution’s favor. This information was not disclosed to the defense, the court, or the jury.<br />
<br />
This case has been George Brauchler’s responsibility for the past five years. Brauchler not only has failed to take any responsibility for the egregious misconduct, he has affirmatively continued the office’s practice of hiding evidence. For example, the case was delayed for a year and half while he forced Colorado’s Supreme Court to consider and later reject his efforts to hide possibly exculpatory material concerning highly questionable conduct on the part of a juror. It wasn’t discovered until 2015 that Brauchler’s office had maintained secret files that contained still more favorable evidence showing hidden payments to state’s witnesses.<br />
<br />
The pattern and practice exhibited by Brauchler’s office and that of his predecessor tarnish the well-deserved image of so many of Colorado’s honest and hardworking prosecutors who actually follow constitutional requirements and take their responsibilities seriously. When prosecutors present false evidence in the name of the people and hide exculpatory evidence, the state loses any moral authority it might otherwise have to impose the ultimate punishment.<br />
<br />
In the 43 years since Colorado reinstated the death penalty, our state has spent between $100-$200 million on capital punishment. And yet, that massive expenditure has yielded one execution.<br />
<br />
The time has come for Colorado to seriously consider whether the death penalty makes sense, given the financial burdens and misconduct that come with it.<br />
<br />
<i>James Castle and Jonathan Reppucci are Denver lawyers appointed by the court to represent Sir Mario Owens.</i><br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com1tag:blogger.com,1999:blog-27687583.post-73356250234584125442017-09-21T13:15:00.000-05:002017-09-21T13:15:05.103-05:00Let’s Keep the Science in Forensic ScienceThe following article by Sunita Sah and others* was published by Scientific American, October, 2017 issue.<br />
<br />
A body created to set national standards is now in danger<br />
<br />
Keith Allen Harward served 33 years in jail after being convicted of
rape and murder, largely on the strength of bite-mark evidence. He was
subsequently found to be innocent on the basis of DNA and released. When
he was incarcerated, the man considered the likely perpetrator remained
free.<br />
<br />
This miscarriage of justice was the result of bad science. Bite-mark
evidence has been shown to lack any scientific credibility, yet it
continues to be used in court. To a public accustomed to watching crimes
being solved on television shows, where the results are always pristine
and the guilty are always convicted, there is a perception that
forensic science is flawless. The reality is that it is not, and we are
in danger of halting and even reversing the considerable steps that have
been taken to fix it.<br />
<br />
In 2009 the National Research Council evaluated the state of forensic
science and, shockingly, concluded that many of the techniques used in
court actually have no scientific basis. In response, in 2013 the
Department of Justice established the National Commission on Forensic
Science (NCFS), which was directed to explore these issues and make
recommendations for addressing them. Administered jointly by the DOJ and
the National Institute of Standards and Technology, the commission—of
which we are members—has worked diligently over the past four years to
identify problems and propose changes to strengthen forensic science.<br />
<br />
This work now may become undone. On April 10 the DOJ, under the new
attorney general Jeff Sessions, refused to extend the term of the NCFS,
which brought together diverse stakeholders, including forensic
scientists, judges, lawyers, victims' advocates, law enforcement and
practicing independent scientists. Its formal demise came a couple of
weeks later. This is a tremendous missed opportunity for the progress of
forensic science and criminal justice. During its four years of
operation, the NCFS made strides in bridging the scientific and legal
disciplines. For example, the NCFS found language such as “reasonable
scientific certainty” to be meaningless and recommended that it not be
used in court because it gives the false impression of scientific rigor.<br />
<br />
Even more important, the NCFS recommended that all forensic
techniques should be independently validated before being used in
criminal investigations. Some of them have been, but too many have not.
Bite-mark evidence is one example: despite lacking any scientific
foundation, it is, incredibly, still being admitted into the courts.
Last year the President's Council of Advisors on Science and Technology
flagged firearms identification and latent fingerprint and footwear
analyses as also unscientific.<br />
<br />
Medical therapies, airplanes and electrical devices are tested by
independent entities before they can be used routinely: the public
demands that this be done and takes for granted that it has occurred.
The public has the right to expect the same of forensic techniques,
given the substantial consequences of the “evidence” produced in court.
It must reflect “the truth, the whole truth and nothing but the truth.”<br />
The DOJ now proposes to improve forensic science by moving its
oversight and development to an office within the department. This is
precisely the opposite of what was recommended by the National Research
Council report and the NCFS. The DOJ is home to many dedicated public
servants, including scientists whose passion for justice is
unquestioned. But the department is not a scientific body, and it is
difficult to see how forensic science can become a true science in such
an environment. Science flourishes when it is free and independent; only
then can the tools and technology that it creates be truly reliable.<br />
<br />
Proclaiming evidence to be scientific does not make it so. Given this
state of affairs, we are bewildered by the decision to end the NCFS.
Questions about the validity of forensic science will not go away, and
failure to address them will lead to further convictions of innocent
people. For our society, the stakes don't get much higher.<br />
<br />
<strong>*Arturo Casadevall,</strong> Johns Hopkins Bloomberg School of Public Health; <strong>Suzanne Bell,</strong> West Virginia University; <strong>S. James Gates, Jr.,</strong> University of Maryland; <strong>Thomas D. Albright,</strong> Salk Institute for Biological Studies; <strong>M. Bonner Denton,</strong> University of Arizona.<br />
Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-60128330284513916262017-09-21T11:50:00.000-05:002017-09-21T11:54:31.548-05:00A Tennessee man could remain in prison for years, even though a judge and prosecutor have dismissed the charges against himThe following opinion by Radley Balko was published by the Washington Post on September 20, 2017.<br />
<br />
From the <a href="http://www.tennessean.com/story/news/2017/09/19/tennessee-parole-board-flaws-john-leon-smith/655277001/?utm_source=dlvr.it&utm_medium=twitter">Tennessean</a>, here’s a crazy story about a man who looks to be doomed to years in
prison, despite the fact that the charges that put him there have been
dropped. You can thank the state’s parole board. <br />
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<br />
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>A judge and
prosecutor dismissed the criminal allegations against John Leon Smith, but in
the eyes of the Tennessee Board of Parole he’s still guilty. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>The man will
remain in prison until next year at least — maybe until 2026 … </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>… Smith served
about half of a 40-year prison sentence for a violent armed robbery and
threatening to kill workers at a Nashville restaurant in 1992. Smith fired
several shots, which wounded one worker, and as he fled from police, fired
shots at officers, according to appeals court records. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>“I was drinking
and drugging and it cost me my life,” he said. “I threw it away in 30 minutes.”
</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>He was released on
parole in October 2013, according to state records. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>Seventeen months
later he was arrested on two felonies, alleging possession of marijuana and a
weapon, court records show. At the time, Smith lived at a North Nashville home
with two other people. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>Because of his
criminal history, Smith wasn’t supposed to have guns. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>Court records and
transcripts say undercover police intercepted a UPS package with nearly 8
pounds of marijuana inside and delivered it to the home, where Smith answered
the door. About 30 minutes later, another man arrived and tried to leave with
the package before he was arrested, according to a transcript of one
detective’s testimony. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>Officers later
found a handgun in furniture in Smith’s bedroom and three rifles and a shotgun
in a separate closet, records say. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>A Nashville judge
dismissed the gun charge two weeks later after hearing testimony from the
homeowner that Smith did not know the guns were in the home and the handgun
belonged to someone else, according to a court transcript. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>In March 2016, a
year after Smith’s arrest, prosecutors dismissed the other charge against Smith
— the drug crime — after the man who claimed the package of pot pleaded guilty,
court records show. </div>
<div class="MsoNormal">
<br /></div>
<span style="font-family: "times new roman" , "serif"; font-size: 12.0pt;"><span style="mso-spacerun: yes;"> </span>“Your case
is dismissed,” a judge told Smith, according to the transcript. “That’s the end
of that, so, for you.”</span><br />
<br />
The
problem: Smith’s arrest was a violation of his parole. Such violations
can send him back to prison. It doesn’t matter that the charges were
dropped. And the ultimate arbiter of whether Smith violated his parole
isn’t the judge or prosecutor, but the Tennessee Board of Parole. And
that group of seven people, all appointed by the governor, has decided
to keep Smith in prison. Bizarrely, the Tennessee legislature has even
passed a law that should apply to cases like Smith’s. But the parole
board decided, unilaterally, that the law isn’t retroactive.<br />
<br />
This isn’t the first time the Tennessee Board of Parole has come under criticism. Here’s an <a href="http://www.tennessean.com/story/opinion/2017/05/30/tennessee-board-parole-needs-reform/102022614/">op-ed</a>, also in the Tennessean, from May:<br />
<br />
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<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>In 1978, Lawrence
McKinney was sentenced to 100 years in prison for crimes he didn’t commit. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>He could have
expected to serve every bit of it, if not for the work of Memphis attorney
Lorna McClusky and the Innocence Project, among others. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>He was released
after serving 31 years and given $75. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>Mr. McKinney
didn’t commit the crime and pled not guilty to it. He maintained his innocence
and turned down offers for a plea bargain. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>Yet, after 31
years of wrongful incarceration, the Tennessee Board of Parole has the gall to
want us to believe that it was Mr. McKinney’s release that was the mistake.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>Media reports
described a Board of Parole hearing to discuss McKinney’s case, after he had
been released, that had the feel of a trial. McKinney was grilled about his
conviction, which, again, had already been vacated and charges dismissed. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>One board member
seemed to reject conclusive DNA evidence. To add insult to injury, the same
board member flat-out declared that McKinney committed the rape in 1977. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>“[W]hen you look
at the record in its entirety…what is clear and convincing to me is that Mr.
McKinney did commit…the crime of rape in 1977,” he said. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="mso-spacerun: yes;"> </span>What’s more,
arguably this kind of alternative reality seems to be par for the course for
the leadership of the Board of Parole. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
When recently
asked about another case of Robert Polk — a prisoner wrongfully held in prison
for two years partly because the Board of Parole did not hold a timely hearing
— the leader of the board reportedly said that the wrongful incarceration had
nothing to do with the board or his leadership.</div>
<br />
As noted, the board
considers clemency and exoneration petitions in addition to parole.
Exonerees must be declared innocent by the governor in order to be
compensated, and most governors won’t exonerate without the board’s
recommendation. Tennessee has exonerated just two people since 2000, and
only one received compensation.<br />
<br />
Members
of the parole board are appointed to six-year terms and make around
$100,000 per year. It isn’t made up of judges or retired judges. The
appointees are largely political. Last year, for example, Gov. Bill
Haslam appointed two new members to the board. <a href="http://knoxblogs.com/humphreyhill/2016/01/11/haslam-names-duncan-kustoff-to-board-of-parole/">Both are best known</a> for being related to prominent state Republicans. One, <a href="http://shoppernewsnow.com/sandra-clark/here-comes-zane/">Zane Duncan</a>,
is a former lobbyist for a Kentucky railroad company … and son of a GOP
congressman. The other, Roberta Kustoff, is a former tax attorney and
wife of Rep. David Kustoff (R-Tenn.).<br />
<br />
<a href="https://www.tn.gov/bop/article/board-members">The makeup of the rest of the board</a>
is just as puzzling. The current chairman, Richard Montgomery, is a
former state legislator with no criminal justice background. Gary
Faulcon is a 25-year police officer. Tim Gobble is a former cop, Secret
Service agent and chief deputy of a sheriff’s department. Finally,
Barrett Rich is a former state trooper and three-term Republican in the
state legislature. Gay Gregson is at least from outside of law
enforcement. <a href="https://www.tn.gov/bop/news/15042">She worked</a> for more than 20 years in special education and has won community service awards in West Tennessee. She was also <a href="http://tnreport.com/2010/03/18/haslam-announces-business-leaders-for-haslam-coalition/">an outspoken supporter</a> of Haslam during his campaign.<br />
<br />
These
are the people who decide the fate of Tennessee prisoners up for parole
— and who advise the governor on clemency, pardons and exonerations.
They’re mostly former cops and former politicians. There are no
psychiatrists or social workers. There are no criminal justice
academics, experts in prisoner rehabilitation, or — God forbid — defense
attorneys. <a href="https://www.tn.gov/assets/entities/bop/attachments/ANNUAL_REPORT_2015-2016.pdf">According to the board’s annual report</a>
for fiscal year 2015-2016, it considered a whopping 16,338 parole
hearings that year. Among its “accomplishments” for that year, the board
notes that it …<br />
<ul>
<li>“Planned
the 13th annual Tennessee Season to Remember event honoring homicide
victims, in cooperation with other state criminal justice agencies.”</li>
<li>“Honored 12 members of the [Board of Parole] staff with awards for reaching milestones in state service.”</li>
<li>“Planted eleven trees in cities across the state to honor victims of crime, and honored victim advocates for their work.”</li>
</ul>
There’s
nothing wrong with honoring victims of crime, of course. But there are
also no “accomplishments” listed as prominently to suggest that the
parole board puts an equal value on redemption, rehabilitation or
reentry.<br />
<br />
Similarly, though the report notes how many applications
the board reviewed and how many trees it has planted in honor of crime
victims, and goes into great detail about the services it provides to
those victims and their families, it has no information about those
people who were granted parole, or what services the board provides to
help them with the transition.<br />
<br />
The board, then, operates not as
an arbiter of an inmate’s rehabilitation, remorse and possible
contribution to society, but as a law enforcement agency, and a
particularly political one at that.Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-91281470812478996892017-09-04T09:11:00.000-05:002017-09-04T09:11:22.420-05:00Why do prosecutors go after innocent people?The following opinion by John Pfaff was published by the Washington Post on September 3, 2017.<br />
<br />
When people think about how our criminal justice system tries to avoid convicting innocent people, they probably think of the second half-hour of a “Law & Order” episode: defense attorneys making motions to thwart the prosecutor, jurors furrowing their brows as they wonder whether the state really has met the high standard of “beyond a reasonable doubt.”<br />
<br />
But that’s not reality. In real life, once a prosecutor decides to file felony charges against a defendant, that defendant will almost certainly be convicted — and local prosecutors have a strong incentive to file, likely thanks in no small part to electoral pressures.<br />
<br />
A study by the Bureau of Justice Statistics looking at urban defendants in state courts found that in 2009, 66 percent of those charged with felonies were convicted, while only one percent were acquitted. The vast majority of those convicted plead guilty instead of going to trial. This means that the last real chance to avoid a wrongful conviction actually occurs at the screening stage, when the prosecutor decides whether to file charges in the first place. And screening is an important part of the process. That same BJS report found that over a third of all cases were dismissed, diverted, or deferred, with almost all of those being dismissed.<br />
<br />
We’d like to think that the high conviction rate reflects really good screening, that prosecutors file charges only against those they know are guilty. But nearly 160 death row inmates have been exonerated since the 1970s, and the National Registry of Exonerations — which surely captures only a small fraction of wrongful convictions — runs to more than 1,600 at this point. A study in 1997 (sadly, the most recent of its kind) found that more than 65,000 inmates in state prisons that year had taken “Alford pleas,” which involve pleading guilty while maintaining innocence on the grounds that it is simply too risky to go to trial. Of course, not every Alford defendant is innocent — but then, not every innocent defendant takes an Alford plea.<br />
<br />
Clearly, prosecutors do file charges against innocent defendants. The instances that receive media attention tend to be intentionally wrongful, those where the evidence of innocence is overwhelming but prosecutors storm ahead anyway, out of malice or blind ambition.<br />
<br />
But I bet most wrongful convictions aren’t the product of such decisions. Prosecutors generally deal with ambiguous cases. What incentives do they face, when acting in good faith, to err on the side of “safety” and file the charges vs. erring on the side of “caution” and dropping the case? Locally elected prosecutors surely do think about innocence, and not just because they don’t want a wrongful conviction scandal to derail a reelection campaign, but there aren’t many restrictions keeping them from filing charges beyond increasingly weakened trial protections and personal ethics.<br />
<br />
Prosecution in the United States is a highly local affair. Almost all criminal cases are handled by one of the nation’s approximately 2,400 prosecutor offices, and in 46 states these prosecutors are elected in county-level elections. While prosecutors almost always win their reelection campaigns and often run unopposed, electoral victory isn’t guaranteed. Data indicate that prosecutors running for reelection win 95 percent of the time, but only 69 percent of the time when facing opposition (although that rate rises to almost 80% in larger districts). And several people have reminded me that prosecutors are political creatures, and thus they are sensitive to electoral pressures even when victory seems assured.<br />
<br />
So who applies this pressure?<br />
<br />
Only a small group: Not very many people vote in these elections. In 2013, for example, a bitterly contested primary battle in Kings County, N.Y., resulted in barely 20 percent voter turnout. And in the 2012 general election in Cuyahoga County, Ohio, 34 percent of those who voted simply skipped voting for prosecutor altogether, despite being in the polling booth already.<br />
<br />
Moreover, those who do vote tend to be wealthier, whiter and more suburban, while those who are prosecuted are disproportionately poor, minority and urban. Most cities, for example, are parts of bigger counties that include rings of wealthier suburbs. And these suburbs, as legal scholar William Stuntz has pointed out, tend to wield disproportionate power when it comes to prosecutor elections, even though crime is concentrated in the cities.<br />
<br />
Thus the costs of wrongful convictions are disproportionately borne by the group with less political power, or at least a weaker political voice. (Urban minorities are also the biggest beneficiaries of effective crime-fighting by prosecutors, which makes their reduced political voice all the more troubling.)<br />
<br />
I’m not saying that this leads prosecutors to willfully go after disproportionately minority urban defendants, innocence be damned (although it certainly helps explain why, say, the current response to rising opioid abuse by whites has been more public-health oriented than the response was to crack cocaine). But it surely means that when deciding whether to file charges in an uncertain case, prosecutors will be more likely to focus on “safety” over “error” — to file rather than dismiss — since the suburban voters want to be safe, but it isn’t their families who bear the costs of error.<br />
<br />
<div style="text-align: center;">
***</div>
John Pfaff is a professor of law at the Fordham University School of Law in New York City. His research focuses on explaining the causes of mass incarceration, especially the central role prosecutors have played in the process. <br />
<br />
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Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-45767826159153891562017-09-01T08:07:00.000-05:002017-09-01T08:09:08.907-05:00The emperor of junk science forensics has diedThe following opinion by Radley Balko was published by the Washington Post on August 31, 2017.<br />
<br />
<a href="http://www.news-leader.com/story/news/2017/08/04/sheriff-highland-springs-deaths-were-murder-suicide-oblock-murdered-fleming/541510001/">According to local news reports</a>, 66-year-old
Robert O’Block died late last month in an apparent murder-suicide. It
appears that O’Block shot himself after shooting and killing his
27-year-old girlfriend. It is a strange, tragic and violent end to a
truly bizarre life.<br />
<br />
O’Block was the founder and chief executive of <a href="http://www.acfei.com/">the American College of Forensic Examiners Institute (ACFEI)</a>,
which claims to be the largest forensics organization in the world. It
may well be. But the group’s impressive size is as much a warning for
the rest of us as it was an accomplishment for O’Block — because the
rise of O’Block and the ACFEI embodies everything that’s wrong with how
forensics is used in the American criminal-justice system.<br />
<br />
The
ACFEI story begins in the early 1990s. For about a decade, O’Block had
been teaching criminal justice at Appalachian State University, a small
liberal arts school in the Blue Ridge Mountains. But the school fired
him in 1991, with college officials alleging that he falsely claimed
co-authorship of several academic articles. (<a href="https://books.google.com/books?id=D8Lwu12jFR4C&lpg=PA44&ots=ReCKn_T8Wx&dq=robert%20o%27block%20ABA%20Journal&pg=PA44#v=onepage&q=robert%20o%27block%20ABA%20Journal&f=false">In a 2000 article in ABA Journal</a>,
O’Block insisted that his termination was retaliation for
whistleblowing.) O’Block was subsequently hired by the criminal-justice
department at the College of the Ozarks in southern Missouri.<br />
<br />
While teaching in Missouri, O’Block took an interest in handwriting
analysis, a highly subjective field of forensics that critics say hasn’t
been subjected to scientific scrutiny. O’Block eventually applied for
membership to an existing organization of forensic handwriting experts
but was rejected. Rather than apply again, O’Block decided to form his
own credentialing organization for the specialty. In 1992, he founded
the <a href="https://books.google.com/books?id=PcGiekzrNzMC&pg=PA33&lpg=PA33&dq=In+1992,+he+founded+the+American+Board+of+Forensic+Handwriting+analysis&source=bl&ots=tMdsS8D8gb&sig=qCE7HiojOGKmZuD0M9FZLpTTRnI&hl=en&sa=X&ved=0ahUKEwjnvt_u__zVAhWI5yYKHaVbADgQ6AEIMzAC#v=onepage&q=In%201992%2C%20he%20founded%20the%20American%20Board%20of%20Forensic%20Handwriting%20analysis&f=false">American Board of Forensic Handwriting Analysts</a> and
put himself in charge. He began soliciting fees for membership and
certification. According to a profile in Fraud magazine, the first
“national training director” O’Block hired for his new organization was a
man who had no more education than a high school diploma and who
claimed he could enlarge women’s breasts through hypnosis. The
breast-enlarging hypnotist would later resign, apparently because even
he began to have doubts about what O’Block was doing in forensics.<br />
<br />
And
yet in spite of all of this, O’Block’s organization’s membership
continued to grow. That’s because of a series of Supreme Court decisions
that came down just a year after O’Block started the group. Until 1993,
the admissibility of expert testimony in federal court and in nearly
every state in the country was governed by a 1923 case for the U.S.
Court of Appeals for the District of Columbia Circuit called <a href="https://www.law.ufl.edu/_pdf/faculty/little/topic8.pdf">Frye v. United States</a>.
In Frye, a polygraph instructor had testified that a rise in systolic
blood pressure was indicative of lying. The court rejected that
testimony and ruled that in order for scientific evidence to be
admissible in federal court, it must have “gained general acceptance in
the particular field in which it belongs.” But the most important part
of the decision came almost by accident: It put judges in charge of
determining what is and isn’t good science. Judges of course are trained
in law, not science. Ever since, the courts have used a legal analysis
to evaluate the merits of scientific evidence. The results have been
disastrous.<br />
<br />
It took another 70 years for the Supreme Court to address the issue of expert testimony. In the 1993 case <i>Daubert v. Merrell Dow Pharmaceuticals</i>,
the plaintiffs alleged that a medication the company had marketed to
pregnant women for morning sickness was causing birth defects. The
Supreme Court used the case and two others to issue a sweeping series of
rulings that sought to suss out the proper relationship between science
and the law. In the end, the court found that the Frye “general
acceptance test” risked excluding science that was not yet generally
accepted by the status quo but could still be valuable in court.
The justices instead instructed judges to consider a variety of other
factors, such as whether an expert’s claims are testable, whether his or
or her conclusions are subject to peer review, whether the methods are
governed by standards and protocol, and whether a witness’ general
testimony has been accepted within a particular scientific community.<br />
<br />
But
to be admitted, expert testimony needn’t meet all of these criteria.
It’s left to judges to determine what weight and significance — if any —
to assign each factor. Daubert opinions are scientifically suspect at
best. They’re often little more than citations to other courts that have
approved the evidence in question.<br />
<br />
The immediate impact of
the Daubert rulings was to create more space for expertise that had yet
to be scientifically scrutinized (though it wasn’t all that difficult
for such experts to testify before the ruling). But as with <i>Frye,</i>
one of the decision’s most important effects was essentially an
afterthought: It put the Supreme Court’s imprimatur on making judges the
“gatekeepers” of expert testimony. Daubert is now the law in federal
court and in all but nine states.<br />
<br />
Asking judges to separate good
science from bad has been as flawed in practice as it sounds in theory.
Judges began to look for shortcuts, one of which was to rely on
professional organizations and certification in considering Daubert
challenges. The market responded, and soon the forensics field was awash
in acronyms as certifying organizations sprang up to meet the demand.
For O’Block, the timing couldn’t have been more fortuitous.<br />
<br />
Within
just a few years, O’Block expanded his new group to include other
emerging fields of forensics. Administrators at the College of the
Ozarks <a href="http://www.fraud-magazine.com/article.aspx?id=4294974474">later told Fraud magazine </a>that
the school terminated O’Block when officials discovered he was using
his students to collect fees, stuff envelopes and send out promotional
materials for the new certifications on offer.<br />
<br />
But by that point,
O’Block no longer needed to teach. In 1995, he renamed his organization
the American College of Forensic Examiners. He would later add the word
“institute” after objections from a group already using the ACFE
acronym. (That group is the Association of Certified Fraud Examiners,
which publishes Fraud magazine.) As his organization grew, O’Block
formed a board of directors, consisting of him, his then-wife and his
two minor children. He paid himself a salary just over $50,000 per year.
And he started a hotline to hook his members up with lawyers in need of
expert witnesses — 1-800-4AExpert.<br />
<br />
ABA Journal reported that by
2000, the ACFEI offered “boards” in 11 specialties. It claimed more than
13,000 members and 17,000 diplomates (if you were a member, you could
be a “diplomate” in more than one field). Revenue for the group
topped $2 million that year, and O’Block’s salary rose to $200,000 per
year. <a href="http://www.news-leader.com/story/news/2017/08/01/who-robert-oblock-man-found-dead-sunday-highland-springs/526737001/">According to tax records</a>
obtained by the Springfield (Mo.) News-Leader, O’Block earned more than
$400,000 from the ACFEI and related organizations in 2010 and 2011.<br />
Today, the ACFEI claims to be the largest forensic certification organization in the country. It probably is. <a href="http://www.acfei.com/media/">It boasts celebrity forensic spokespersons</a>, like the famed medical examiner<a href="http://www.pbs.org/wgbh/frontline/article/dr-cyril-wecht-the-benefits-of-forensic-credentialing/"> Cyril Wecht</a>
and the forensic analyst Henry Lee, who worked on the O.J. Simpson,
JonBenet Ramsey and Laci Peterson cases. It features certification in
areas such as <a href="http://www.acfei.com/forensic_certifications/cfpt/">“forensic professional technologist.”</a> The <a href="https://www.youtube.com/watch?v=UQA_Y6C2qHc">“survival mindset” certification</a> is taught by Dave Grossman. Regular readers of The Watch <a href="https://www.washingtonpost.com/news/the-watch/wp/2017/02/14/a-day-with-killology-police-trainer-dave-grossman/?utm_term=.dc03a88e1172">will recognize Grossman</a> as the man behind controversial police training seminars such as “The Bulletproof Warrior.”<br />
<br />
The
group has several sub-specialty fields with names that sound
suspiciously similar to existing, more reputable organizations. For
example, it features a number of “advisory boards” that use the term
“American Board” (the American Board of Forensic Medicine, American
Board of Psychological Specialties, and so on). That same term is also
used by more credible and widely accepted medical boards such as the
American Board of Medical Specialties, the American Board of Pathology,
and so on. There is a world of difference between a medical examiner
telling a judge that he or she is certified by the American Board of
Pathology vs. the American Board of Forensic Medicine. But both sound
pretty official, and both sound like the sort of group that might
certify medical examiners. Judges, prosecutors and defense attorneys
often don’t take the time to learn the difference.<br />
<br />
<div class="p1">
One of the main criticisms of the ACFEI over the years is
that the group seems to spend far more time and energy collecting fees
from its members than it does verifying the expertise of the people it
certifies. In fact, many members over the years have simply been
grandfathered into certification or some other form of accreditation.
They needed only to send a check and a résumé.</div>
<div class="p1">
<br /></div>
<a href="https://www.wsj.com/articles/SB918429399207124500">The Wall Street Journal reported</a>
in 1999 that ACFEI candidates who weren’t grandfathered in had to score
75 percent or higher on an ethics test. But the test was largely
symbolic. It included questions such as “Is it ever okay to misrepresent
yourself?” and “Is it ever okay to stretch the truth?” Failing
applicants could retake the test up to three times. The test requirement
could also be waived entirely if a candidate’s application accumulated
100 “points.” A published article was worth 10 points. Attending a
“scientific meeting” was worth 5. A bachelor’s degree alone was worth
30. Points weren’t determined by the ACFEI, but by applicants
themselves, using the honor system. And even that could be waived. “Dr.
O’Block himself ultimately determines who gets a credential, based on
his review of an applicant’s background,” the Wall Street Journal
reported.<br />
<br />
ABA Journal interviewed one psychiatry professor at
Washington University in St. Louis who received ACFEI certification
without trying. He had applied for certification after seeing an ad in
the back of a medical journal. When he received the ethics test (which
could be returned by mail), he said, “The questions were so trivial, I
didn’t even bother to fill it out.” To his surprise, the ACFEI sent him
his certification anyway, followed by solicitations for higher levels of
certification — all for an additional fee, of course.<br />
<br />
Similar stories abound. Former prison inmate <a href="http://www.nytimes.com/2001/09/06/business/a-resume-distinguished-by-what-it-didn-t-mention.html?mcubz=0">Seymour Schlager</a>
was able to obtain a certification from the ACFEI’s “American Board of
Forensic Medicine” while serving time for attempted murder. In 2002, one
woman was able to get certification for her cat. O’Block took exception
to that report. “First of all, ACFEI did not certify a cat,” he said.
The group “certified a human being who used fraudulent credentials and
called himself Dr. Katz.”<br />
<br />
But that was sort of the point. The
ACFEI never bothered to verify any of those credentials. And those
credentials are what allowed the fictional feline to skip the take-home
exam. ACFEI employees interviewed by ABA Journal reported that the
ethics tests were often written by low-level staffers with little to no
experience in the fields for which they had been assigned.<br />
<br />
Despite
the bad publicity, the ACFEI continued to grow throughout the 2000s.
After the 9/11 terrorist attacks, the group began offering a
certification in “Homeland Security.” After paying $500 and passing an
ethics test, the group will grant something called Level I CHS
(Certified in Homeland Security). For an additional $500, you can move
up to Level II. A 2007 ad in Forensic Examiner, the ACFEI’s official
publication, offered Homeland Certification up to Level V. (The program
has proved lucrative. As of 2014 the U.S. Navy had paid the ACFEI more
than $12 million to certify sailors through the organization.)<br />
<br />
In
2004, O’Block created a company to oversee his other ventures,
including the ACFEI. In 2011, he changed the name of that company to the
Center for National Threat Assessment.<br />
<br />
Oddly, the ACFEI hasn’t
always been forthcoming about whom it certifies. Back in 2007, I
contacted the organization to inquire about the controversial
Mississippi medical examiner Steven Hayne. For years, Hayne had claimed
in court to be “board-certified” in forensic pathology, despite the fact
that he failed the certification exam given by the American Board of
Pathology, generally recognized as the only legitimate certifying body
for medical examiners. To my surprise, the group told me that it doesn’t
release the names of the experts it has certified. That seems to defeat
the entire purpose of certification. If the group won’t verify whom it
has and hasn’t certified, anyone could claim to be certified. There’s no
way to check.<br />
<br />
<a href="http://reason.com/archives/2007/10/08/csi-mississippi">In a subsequent article for Reason magazine</a>,
I noted that many former members and forensic specialists had
criticized the ACFEI as a “certification mill.” (Hayne, like many other
ACFEI diplomates, was grandfathered in for his certification. He had to
provide only a résumé and pay a $350 fee.) That description prompted<a href="http://reason.com/archives/2008/06/02/letters"> a letter to the editor</a>
from the group’s “certifications officer,” as well as a series of
emails from the editor of the group’s Forensic Examiner magazine. The
letter to the editor included vaguely threatening legal language calling
my description of the ACFEI “false and disparaging” and “recklessly
false and damaging” and warned that I could face “personal liability”
for quoting other articles critical of the ACFEI. (O’Block and the ACFEI
group have filed at least two defamation lawsuits against critics of
the organization. Neither was successful.)<br />
<br />
Despite ACFEI
officials’ protestations that the group was not a “certification mill,”
four years later a journalism grad student named Leah Bartos <a href="https://www.propublica.org/article/no-forensic-background-no-problem">was able to get certified</a>
as a “forensic consultant,” despite having no prior experience in
forensics. In an article for ProPublica and “Frontline,” Bartos wrote
that to get the certification, she only had to watch a 90-minute video
and pass a 100-question online test (with the assistance of the “study
packets” the ACFEI had sent her). She also had to pay $495, plus an
additional $165 in ACFEI membership dues. (For an additional $50, the
ACFEI offered to send her a white lab coat.) In their correspondence
with me, both ACFEI representatives claimed that candidates for the
group’s various levels of credentials are extensively vetted. According
to Bartos, no one from the ACFEI ever contacted any of her professional
references.<br />
<br />
When asked whether they’re worried that their
certification programs are enabling unqualified “experts” to testify in
court, ACFEI spokespersons will often say the group has never claimed
that certification is meant to qualify a candidate as a witness. But
ACFEI publications and promotional materials tell a different story. The
descriptions of the group’s various programs advertise how important
credentials are to establish credibility as an expert witness. For
example, here’s copy from the page for the <a href="http://www.acfei.com/forensic_certifications/cfp/">“Certified Forensic Physician” program</a>:<br />
<blockquote class="citation">
Forensic
Physicians hold an integral role in determining the outcome of many
important court cases. Often in extreme cases of assault, murder, or
rape, a Physician can unlock the information to put an assailant in
jail, or to exonerate the innocent.</blockquote>
Here’s copy from the page for <a href="http://www.acfei.com/forensic_certifications/cmi/">“Certified Medical Investigator”</a>:<br />
<blockquote class="citation">
Medical
investigators are often asked to do many different things. Sometimes
they must analyze a crime scene for trace evidence; other times they
must review a victim-dead or alive-for signs of violence, yet other
times they must analyze DNA or other evidence, to convict the guilty or
exonerate the wrongly accused.</blockquote>
Promotional materials also often include photos of courtrooms, gavels and other symbols of the legal system.<br />
<br />
Of
course, even properly credentialed experts can still give testimony
that’s not credible. But proper credentials at least establish a
baseline. They’re the minimum qualification to be certified as an expert
witness. As Michigan circuit court judge Donald Shelton put it
in Bartos’s 2012 ProPublica report, “Credentials are often appealing
shortcuts,” adding that “jurors have no way of knowing that this
certifying body, whether it’s this one or any other one, exacts
scientific standards or is just a diploma mill.” This is the confusion
upon which O’Block built a credentialing empire.<br />
<br />
Earlier this month, the ACFEI <a href="http://www.news-leader.com/story/news/business/2017/08/08/oblocks-company-suspends-operations-week-after-pledging-business-usual/548138001/">announced on its website</a> that
it had indefinitely suspended its operations in the wake of O’Block’s
death. The group did not return an email requesting comment, but that
notice <a href="http://www.acfei.com/">has since been removed</a>.<br />
<br />
<a href="http://www.news-leader.com/story/news/2017/08/01/who-robert-oblock-man-found-dead-sunday-highland-springs/526737001/">The News-Leader profile</a>
of O’Block describes him as a controlling, often abusive boss. He was
married four times and was once sued for alleged sexual harassment (he
settled). That lawsuit accused the ACFEI of paying for the “non-business
expenses of O’Block and members of his family, girlfriends and
employees.” According to the article, in his autobiography, O’Block
dismisses criticism of his organization as little more than envy,
writing, “If there is one thing that the history of mankind teaches, it
is that success breeds contempt. No one who has ever reached the
pinnacle of success has avoided wandering through the valley of the
critics.” According to O’Block’s Facebook account, he was a vocal
supporter of Donald Trump. That makes some sense. One of the first
policies of the Trump Justice Department was to end its partnership with
the <a href="https://www.washingtonpost.com/local/public-safety/sessions-orders-justice-dept-to-end-forensic-science-commission-suspend-review-policy/2017/04/10/2dada0ca-1c96-11e7-9887-1a5314b56a08_story.html?utm_term=.563b399f10c4">National Commission on Forensic Science</a>, a group whose aim was to bring scientific scrutiny to forensics.<br />
<br />
In his
autobiography, O’Block compares himself to Thomas Edison, Henry Ford
and Alexander Graham Bell. There’s no question that O’Block built an
enormous organization, one that proved quite lucrative for him. But
Edison and Bell were men of science. Ford, for all his flaws, was an
innovator who improved the lives of millions. O’Block made his fortune
helping others exploit a fatal flaw in the criminal-justice system. Some
of the people O’Block has credentialed are no doubt genuine experts,
but they didn’t need O’Block’s credentials in the first place. The
people who need the credentials are those who can’t get credentialed by a
more reputable organization, or who specialize in fields for which more
reputable organizations don’t exist. Many of those people then put
O’Block’s dubious credentials to work, whether by testifying in court,
aiding in police investigations or giving professional advice they
weren’t qualified to give.<br />
<br />
O’Block had delusions of grandeur, but
he could certainly say at his death what few others can: He changed the
world. He made expertise less reliable, certification less reputable
and the courts less just. He left the world a less honest, less
reliable, less trustworthy place. But if it hadn’t been O’Block, it
would have been someone else. Until we fix the flaws in our justice
system that allowed him to flourish, another Robert O’Block will
inevitably step up to take his place.<br />
<br />
<div style="text-align: center;">
***</div>
Radley Balko blogs about criminal justice, the drug war and civil
liberties for The Washington Post. He is the author of the book "Rise of
the Warrior Cop: The Militarization of America's Police Forces." Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-19052735993290820352017-08-11T13:57:00.001-05:002017-08-11T13:57:45.179-05:00Criminal justice reform starts with the prosecutorThe following article by Fred Patrick and Meg Reiss was published by The Hill on August 10, 2017.<br />
<br />
Respect. Self-worth. Hope. Proportionality. These were one-word
visions for a reimagined criminal justice system from group of people
who have considerable power to make change a reality: prosecutors.<br />
<br />
This
summer 24 prosecutors from around the country and across the political
divide came together in New York to discuss the criminal justice system
and prosecutors’ role in it. Their aim was not to gain more resources to
maximize convictions or felony charges, but rather to find ways to
recognize the needs and the dignity of the communities they serve —
including victims, witnesses and defendants — and to build a criminal
justice system that better enhances safety and ensures fairness.<br />
<br />
This
kind of convening — organized by the Vera Institute of Justice’s
Reimagining Prison initiative and The Institute for Innovation in
Prosecution at John Jay College of Criminal Justice (IIP) — was
remarkable because prosecutors are some of the most powerful players in
the criminal justice system. They wield wide discretion, including over
what charges to bring and whether to enter a plea negotiation.<br />
<br />
Traditionally,
prosecutors are seen as measuring success in terms of convictions, plea
bargains or the amount of punishment exacted. But prosecutors are
rethinking their role in the criminal justice system. In a time where
the future of criminal justice reform at the federal level is uncertain,
justice delivery at the local level is even more important, and this
shift represents a powerful sea change in thinking.<br />
<br />
The
prosecutors attending represented jurisdictions ranging from rural West
Virginia, to suburban Alabama, to the nation’s largest coastal cities.
Some have been in office for as long as 35 years, while others were
elected last fall as part of a <a href="https://www.themarshallproject.org/2016/11/09/these-prosecutors-campaigned-for-less-jail-time-and-won#.WIFQEiFyv">wave of reform-minded prosecutors</a>.<br />
<br />
Despite
the geographic and political diversity, some common themes emerged
throughout the meeting. For one, everyone agreed that rehabilitation —
which is not currently delivered through incarceration — is a key
determinant of public safety. The prosecutors also unanimously agreed on
the need for front-end reform: preventing people from being behind bars
by implementing alternatives to incarceration, and making sure that
other systems, such as education, provide more opportunity to keep
people from the criminal justice system entirely.<br />
<br />
And what about
after prosecution? The prosecutors were in widespread agreement that
there’s currently a disconnect between them and other criminal justice
system players. “If we want to see lower rates of re-offense, we need to
care about what is happening to people while they are in prison,” one
prosecutor told us, who argued for communicating more with departments
of corrections. Another said that after realizing that the vast majority
of his assistant district attorneys — the people in his office
responsible for actually trying cases — had never been inside a prison,
he had them go see one in person.<br />
<br />
And although more than 95
percent of cases result in a plea bargain and don’t go to trial, some
prosecutors articulated that sentencing was not under their control, and
that those decisions are subject to state laws and judges. However,
others argued that prosecutors yield great power through sentencing
recommendation and plea bargains; one prosecutor noted that “from the
public’s view, we — and we alone — are the sole actor who sends people
to jail and prison.” <br />
<br />
In considering how prosecutors contribute
to incarceration, the group participated in a discussion about what a
reimagined prison system could look like. Prosecutors considered
hypothetical cases and gave a wide variety of sanctions that they would
recommend for each case, ranging from one to 15 years of prison time, to
diversion and probation.<br />
<br />
The diversity of sanctions presented by
the group on these cases may make it seem like the criminal justice
system is arbitrary, hyper-localized and far from what a reimagined
system could look like. After all, there are more than 3,000 local
counties, each with their own justice system. However, on that day, we
also heard consensus about the need for reform from a broad range of
prosecutors. And in the variety of responses, we also saw a range of
options for moving past heavy-handed sentences that have helped create
mass incarceration.<br />
<br />
One of the clearest things we heard from prosecutors was that many <em>want</em>
to think about things differently, but they think they are alone.
They’re not. Our organizations — The Institute for Innovation in
Prosecution at John Jay College of Criminal Justice (IIP) and the Vera
Institute of Justice — are partnering with prosecutors from across the
country to consider how they can rethink their roles and
responsibilities to help create a more effective and equitable criminal
justice system.<br />
At the meeting, 24 prosecutors asked hard
questions of themselves and each other, and considered how to use their
power for public safety rather than solely for punishment. Critical to
this shift is recognizing the humanity of each person in front of them
and embracing a restorative approach to public safety and the
administration of justice.<br />
<br />
<div style="text-align: center;">
*** </div>
<br />
<em>Fred Patrick is the director of
Sentencing and Corrections at the Vera Institute of Justice. Patrick
previously served as New York City Deputy Commissioner for Planning and
Programs at the NYC Department of Correction, Commissioner of the NYC
Juvenile Justice Department and NYPD Deputy Commissioner for Community
Affairs. He also served as a faculty member at <a href="http://www.jjay.cuny.edu/" rel="noopener noreferrer" target="_blank">John Jay College of Criminal Justice</a>.</em><br />
<br />
<em>Meg Reiss is the executive director for the Institute for Innovation in Prosecution at <a href="http://www.jjay.cuny.edu/" rel="noopener noreferrer" target="_blank">John Jay College of Criminal Justice</a>.
Reiss has more than 20 years of legal and criminal justice policy
experience, including as an assistant district attorney in the Brooklyn
District Attorney’s Office, supervising compliance at the Los Angeles
Police Department, and has served as the chief of staff of the Nassau
County District Attorney’s Office.</em>Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-59045880018834224532017-08-04T20:01:00.001-05:002017-08-04T20:01:18.745-05:00I Just Walked Free after 22 Years in Prison for a Crime I Didn’t Commit. I Still Want Justice.The following contribution by Lorenzo Johnson was published by HuffPost on August 3, 2017.<br />
<br />
After twenty-two years of fighting my wrongful conviction, I’m finally free from a “natural life” sentence. In Pennsylvania, a life sentence is called “the other death penalty.” Why? Your sentence is only considered served when you no longer have air in your lungs...<br />
<br />
I have one of the rare cases that got national attention because my conviction was vacated on October 4, 2011 by the Third Circuit Court of Appeals on the grounds of insufficient evidence, which is equivalent to a “not guilty” verdict and bars retrial. Still, the prosecution fought me tooth and nail until the judge ordered my release on January 12, 2012, pending the prosecution’s last appeal to the US Supreme Court.<br />
<br />
I quickly returned to my home state of New York. where I rejoined my family structure after being gone for sixteen and a half years. I began working, speaking at colleges and wrongful conviction events, and I met my wife. But my freedom was short lived. After a mere 148 days, the US Supreme Court reinstated my conviction in a per curiam decision and ordered me back to prison. My defense was not allowed to file briefs or make oral arguments for our position (normal procedures). I returned to prison on June 14, 2012, ready to keep fighting and clear my name once and for all.<br />
<br />
A short time after my return to prison, my defense unearthed a treasure trove of new evidence proving my innocence in a grave case of prosecution misconduct. The prosecution in my case knew I was innocent from day one but withheld this information for eighteen and a half years. Instead of finally doing what was right, they accused me of not filing my appeal sooner. In other words, “SO WHAT” if they never turned this evidence over like they were supposed to?<br />
<br />
After almost four years of delays and stall tactics, a judge gave me an evidentiary hearing on my claims of prosecution misconduct. I was about to finally have my day in court with overwhelming amount of evidence of my innocence that was supposed to be furnished to my defense prior to trial.<br />
<br />
For innocent prisoners, we can have evidence of our innocence and still be denied justice. Why? If your appeal is filed one day late, you’re “time barred” and will automatically lose your claim despite being able to show your innocence. Then there’s the uncertainty as to whether the judge will rule in your favor even though you can prove your innocence.<br />
My confidence has truly been lost in our criminal justice system after experiencing everything from strict guidelines that hurt the innocent to crooked agents of the court. In my situation, my faith has almost been shattered in the criminal justice system. Due to this, and to our fears about what might go wrong next, my defense agreed to a plea agreement to secure my instant release.<br />
<br />
After twenty-two years of not just my own suffering, but my family’s as well, I made the bittersweet decision to end their pain and regain my freedom. I entered a plea of “no contest” to lesser charges. No innocent prisoner deserves anything less than a full exoneration. This is my second release from a natural life sentence—that tells you there was something extremely wrong with my conviction.<br />
<br />
<div style="text-align: center;">
* * *</div>
Lorenzo Johnson spent almost twenty-two years incarcerated for a crime he didn’t commit. Wrongfully convicted of a 1995 murder in Harrisburg, Pennsylvania, he won release from his life-without-parole sentence in 2012, after the Third Circuit Federal Court of Appeals ruled there was legally insufficient evidence for his conviction. He remained free for four months, after which the US Supreme Court unanimously reinstated the conviction and ordered him back to prison to resume the sentence. With the support of The Pennsylvania Innocence Project, he continued to fight for his freedom. On July 11, 2017, he was re-sentenced and released from prison. He now lives in his hometown of Yonkers, New York, with his wife, Tazza. You can reach him at: <a href="mailto:lorenzojohnson17932@gmail.com">lorenzojohnson17932@gmail.com</a>. For more information, visit <a href="http://www.freelorenzojohnson.org/">www.freelorenzojohnson.org</a><br />
.<br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-10556445403082935472017-07-16T07:09:00.002-05:002017-07-16T07:09:35.420-05:00Texas cracks down on the market for jailhouse snitchesThe following editorial was published by the New York Times on July 16, 2017.<br />
<br />
Prosecutors love jailhouse informants who can provide damning testimony that a cellmate privately confessed to a crime. Jailhouse informants, in turn, love the perks they get in exchange for snitching, like shortened sentences, immunity from prosecution or a wad of cash.<br />
<br />
As you might imagine, though, in a market driven by such questionable motives, the testimony these informants provide is often unreliable.<br />
<br />
Even worse, it can be deadly. False testimony from jailhouse informants has been the single biggest reason for death-row exonerations in the modern death-penalty era, according to a 2005 survey by the Center on Wrongful Convictions. They accounted for 50 of the 111 exonerations to that point, and there have been 48 more exonerations since then.<br />
<br />
Last month, Texas, which has been a minefield of wrongful convictions — more than 300 in the last 30 years alone — passed the most comprehensive effort yet to rein in the dangers of transactional snitching.<br />
<br />
Texas has become a national leader in criminal-justice reforms, after having long accommodated some of the worst practices and abuses in the nation. The state, particularly in light of past abuses, deserves credit for seeking innovative solutions to problems that have long proved resistant to change.<br />
<br />
The new law requires prosecutors to keep thorough records of all jailhouse informants they use — the nature of their testimony, the benefits they received and their criminal history. This information must be disclosed to defense lawyers, who may use it in court to challenge the informant’s reliability or honesty, particularly if the informant has testified in other cases.<br />
<br />
The law was recommended by a state commission established in 2015 to examine exonerations and reduce the chances of wrongful convictions. The commission also persuaded lawmakers to require procedures to reduce the number of mistaken eyewitness identifications and to require that police interrogations be recorded — smart steps toward a fairer and more accurate justice system.<br />
<br />
But the new procedures on jailhouse informants shouldn’t have been necessary in the first place. Under longstanding Supreme Court rulings, prosecutors are required to turn over any evidence that might call an informant’s credibility into question — such as conflicting stories or compensation they get in exchange for their testimony. Yet far too many fail to do so.<br />
<br />
A better solution would be to bar the use of compensated informants outright, or at least in cases involving capital crimes, as one Texas bill has proposed. Studies have shown that even when a defense lawyer is able to make the case that an informant has an incentive to lie, juries are just as likely to convict. And that’s assuming a defense lawyer uses such evidence — not always a safe assumption given the wide range of quality in the defense bar.<br />
<br />
Also, making evidence admissible at trial only goes so far. The vast majority of convictions are the result of guilty pleas, which means a defendant may not even find out that an informant was paid to incriminate him before having to decide whether to accept a plea offer.<br />
<br />
Some states have begun to require that judges hold hearings to test an informant’s reliability, much as they would test an expert witness’s knowledge — before the jury can hear from him.<br />
<br />
But the deeper fix that’s needed is a cultural one. Many prosecutors are far too willing to present testimony from people they would never trust under ordinary circumstances. Until prosecutors are more concerned with doing justice than with winning convictions, even the most well-intentioned laws will fall short.<br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com1tag:blogger.com,1999:blog-27687583.post-35709934926694248442017-04-13T18:17:00.001-05:002017-04-13T18:17:59.940-05:00Jeff Sessions wants to keep forensics in the Dark AgesThe following opinion by Radley Balko was published on April 11, 2017 by the Washington Post.\<br />
<br />
When Jeff Sessions was a senator on the Senate Judiciary Committee, he was part of hearings to address the National Academy of Sciences report on the use of forensics in America’s courtrooms. The NAS report had been commissioned by Congress after DNA testing had revealed not only that hundreds of people had been wrongly convicted of serious crimes like murder and rape, but also that about half those people had been convicted due in part to or because of forensic testimony that could only have been wrong.<br />
<br />
Sessions wasn’t buying it. “I don’t think we should suggest that those proven scientific principles that we’ve been using for decades are somehow uncertain and leaving prosecutors having to fend off challenges on the most basic issues in a trial,” he said, rebutting the scientists who had come to precisely that conclusion in their report. The “scientific” and “proven” parts were precisely what the report found lacking in too many forensic disciplines. Sessions either didn’t read it — he has a record of criticizing reports without reading them — or simply dismissed it.<br />
<br />
When witnesses noted that there was no scientific research to support the field of handwriting analysis, Sessions remarked, “Well, I’ve seen them testify and I’ve seen blow-ups of the handwriting, and it’s pretty impressive.” Who are you going to believe, a team of scientists, or Jeff Sessions’s sense of wonder?<br />
<br />
Longtime critics of bad forensics worried that the NAS report was too diplomatic: For example, it didn’t call for the abolition of any dubious disciplines. But for Sessions, even tepid criticism of the tools he and other prosecutors had used for years was a threat. One witness at the hearings was a prosecutor from Wyoming who was testifying in opposition to the report. Sessions tossed him a softball: “Do you believe that the report, perhaps trying to get our attention, used some pretty strong language suggesting the unreliability of what I have always understood to be proven scientific techniques? Is that something that the district attorneys are finding . . . that this is being thrown up to create the impression with a jury that there’s no basis for these kinds of reports?” His main concern was not whether evidence was accurate, but whether the report could make it more difficult to get convictions.<br />
<br />
All of which brings us to the big news this week, which, given Sessions’s history, shouldn’t be terribly surprising.<br />
<br />
Attorney General Jeff Sessions will end a Justice Department partnership with independent scientists to raise forensic science standards and has suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisers.<br />
<br />
In a statement Monday, Sessions said he would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013.<br />
<br />
A path to meet needs of overburdened crime labs will be set by a yet-to-be-named senior forensic adviser and an internal department crime task force, Sessions’s statement said.<br />
<br />
The announcement came as the commission began its last, two-day meeting before its term ends April 23, and as some of its most far-reaching final recommendations remained hanging before the department.<br />
<br />
The NCFS was created by the Obama administration in the wake of mounting evidence that forensic evidence was being misstated and misused in courtrooms. The commission was charged with coming up with broad directives on proficiency training, accreditation and certification, and quality control practices.<br />
Sessions’s decision to end the commission is somewhat complicated by a vote the commission members took earlier this year. Under a memorandum of understanding with the Justice Department, the NCFS was initially commissioned to operate for two years. During discussion over what to put in a summary report of the commission’s work, the members voted 16 to 15 not to include language recommending that the commission be renewed.<br />
<br />
That could be interpreted to mean that the NCFS members themselves voted to end their own commission — which would make Sessions’s decision to end it seem less controversial. But sources familiar with committee deliberations tell me that this isn’t quite right — a strong majority of the commission does want to continue its work. Some of the 16 who voted against the measure did so because they thought the summary report should include only the commission’s findings; they felt that adding the language about renewal seemed self-serving. Others believe the commission is important and should continue but were somewhat disillusioned by the new administration’s antipathy toward science. Still others wanted the commission to continue, but under a new structure and organization, preferably outside of the Justice Department. According to the sources, there were a few members who may have voted to end the commission entirely, but they were firmly in the minority.<br />
<br />
Sessions may not be finished. There’s another important forensics reform initiative started during the Obama administration that Sessions may target next. The National Institute of Standards and Technology (NIST) also oversees forensic science and has long sponsored “working groups” in various fields of forensics. One such working group is currently looking into fingerprint analysis, a field Sessions seems particularly concerned may soon be undermined by scientists. The working groups have been around for decades, but under President Barack Obama, NIST also established the Organization of Scientific Area Committees, or OSACs. These are committees of practitioners, scientists and skeptics who have been asked to delve into the scientific research supporting or refuting more than two dozen fields of forensics.<br />
<br />
NIST is under the Commerce Department, not the DOJ, so Sessions couldn’t himself disband the working groups or the OSACs. But the OSACs are partly funded by the DOJ. Sessions could halt that funding. According to recent public comments from the OSAC’s director, NIST has been looking for alternate sources of funding to keep the committees operational.<br />
<br />
Once caveat worth noting here: As is often the case with these sorts of committees, the OSACs themselves have been subject to infighting and politicking. As I’ve pointed out here at The Watch, for example, the OSAC looking at bite-mark analysis was loaded with a majority of members who either practice or openly support bite mark matching. Still, the committee also included skeptics, and any recommendations would have to be approved by the NIST Forensic Science Standards Board, a group made up almost entirely of established scientists. Whatever their flaws, the OSACs are at least taking a hard look at problematic fields of forensics and trying to establish uniform standards in others.<br />
<br />
Even if Sessions can’t unilaterally end the OSACs or NIST working groups, he wields considerable influence in the Trump administration. Trump himself, like Sessions, spouts law-and-order rhetoric, seems skeptical of criminal-justice reform, and is a man who has little patience for inconvenient science. It isn’t difficult to imagine Sessions persuading Trump to go after NIST as well. There’s a reason the old guard in the forensics community celebrated Trump’s election.<br />
<br />
Judging by his public record, Sessions believes the criminal-justice system’s primary job is to fill up prisons. You need only look at his enthusiasm for the drug war, his efforts to block sentencing reform or, well, just about anything he has said on the topic over the course of his career. And as we’ve seen with his statements on policing, he’s also no fan of federal oversight. It shouldn’t be surprising why he seems so irked by reforms that would undermine both views.<br />
<br />
During his time in the Senate, Sessions’s main concern when it comes to forensics has been that the field suffered from a lack of funding, which he worried causes backlogs and over-burdened crime labs — all of which makes it more difficult to put people behind bars. “So, tens of thousands of people, I suggest, are not being promptly tried,” he said at the 2009 hearing on the NAS report. “While they’re out on bail or un-indicted, they’re committing crimes this very moment. A lot of that is because we’ve not invested enough in our forensic sciences so that we can get accurate and prompt reports.”<br />
<br />
For Sessions, the federal government’s only real responsibility in the area of forensics is to provide the resources and training necessary to help local cops and prosecutors put people in prison. Any oversight or quality control is meddling. The FBI’s own history shows why he’s wrong. Over the past several years we’ve learned that the agency — whose crime lab is considered one of the most prestigious in the world — faked an entire field of forensic science. Not once, but twice.<br />
<br />
But when law enforcement clashes with science, Sessions sides with law enforcement. And this really gets to the heart of the ongoing problem with forensics. Most fields of forensics were invented and developed by police agencies, not in scientific labs. In fact, for most of the 20th century, the scientific community largely steered clear of the criminal-justice system. Science and law are two entirely different fields. They’re driven by different goals, different processes, and different values. Science is the gradual accumulation of knowledge through trial, error and corroboration. The criminal-justice system tries to get at truth through an adversarial process, after which it prioritizes preserving jury verdicts.<br />
<br />
But prosecutors also learned early on that jurors like expertise, and so a demand emerged for expert witnesses. Unfortunately, no one was making sure the expertise on offer was legitimate. And so we got an entire profession of experts who were willing to say things that actual scientists wouldn’t.<br />
<br />
Juries crave certainty. They swoon for expert witnesses who can wow them with technology. Real scientists don’t speak in certainties. They talk about margins of error, which means jurors find real science less convincing. Our adversarial system may be the best system available for assessing evidence, but it’s hostile to good science. That’s why it’s important that experts willing to tell juries un-scientific things be barred from the courtroom. It’s why we need judges to consult with real scientists when making such decisions. And it’s why we need prosecutors honest enough to resist the temptation to seal convictions with charlatanism masquerading as expertise.<br />
<br />
But the system also makes all of those things difficult, so it wasn’t until the 1990s and DNA testing — technology developed by scientists, not law enforcement — that we began to see just how wrong forensic analysis could be. There were particular problems within the highly subjective disciplines known as “pattern matching” — fields like hair and fiber analysis and bite-mark matching. Even then, it took another couple of decades before the scientific community began to rigorously apply the scientific method to the claims and methods of forensic analysts. Once they did get involved, in report after report — including that 2009 NAS report, reports from the Texas Forensic Science Commission, and the President’s Council of Advisors on Science & Technology (PCAST) report last fall — the “science” in”forensic science” has been found to be somewhere between insufficient and nonexistent.<br />
<br />
And yet instead of a sense of humility at the profound implications of these reports, law enforcement officials and prosecutors like Sessions have retreated to the battle lines that defined much of the last century. They’ve attacked the scientists as biased, or made bizarre arguments that forensics should be judged on principles other than scientific principles. (Before we give the Obama administration too much praise, it’s worth pointing out that after PCAST issued its damning report on forensics last year, Obama’s own attorney general Loretta Lynch immediately dismissed it.)<br />
<br />
In only the past decade or so, we have finally managed to nudge forensic analysis at least partly out from its dark ages. While the courts haven’t paid much attention yet, these committees and their reports were the first steps toward subjecting forensics to principles like peer review, blind testing, statistical analysis and the more modern concepts grounded in those principles, like sequential unmasking. Sessions is poised to eradicate that progress.<br />
<br />
It’s hard to overstate the urgency here. As I’ve written before, DNA testing was a wake-up call. It is not a panacea. In the small pool of cases for which DNA testing is dispositive of guilt, the technology revealed serious problems with our criminal-justice system, and forensic evidence was one of the most significant. But the window of opportunity to correct the mistakes exposed by DNA testing will remain open only as long as DNA exonerations are fresh enough in the minds of the public to sustain support for reform. Soon we’ll have exhausted the pool of cases that are old enough to have been decided before DNA testing would have been done early in the investigation, but recent enough that the DNA sample is still available and hasn’t degraded. If the Jeff Sessionses of the world can put off reforms until those cases are exhausted, it becomes much easier to argue that the problems DNA testing exposed are mere relics of the past — that we needn’t worry about all of this anymore. And if we don’t fix the problems DNA testing has exposed, they’ll continue to plague all the other cases for which DNA testing isn’t useful. There will be few new exonerations to argue otherwise, and in the meantime, there will always be a grisly murder or brutal rape in the news to demagogue about the danger of “tying the hands” of police and prosecutors — a tactic Sessions deploys with ease. Only this time, there might be no new technology to let us know that we’re making mistakes. We’ll continue on, blind to the problems we failed to fix.<br />
<br />
The Obama administration finally provided a platform and framework for real scientists to scrutinize the way forensics is used in the courtroom — but then largely ignored their recommendations. The Trump administration now seems intent on eliminating the platform, too.<br />
<br />
That window for reform is closing, and Sessions seems content to let it slam shut. He’d prefer to keep forensics in the dark.<br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-74501787136791464612017-04-03T04:26:00.004-05:002017-04-03T04:26:38.125-05:00Finley: State should expedite wrongful conviction claimThe following opinion by Nolan Finley was published by the Detroit News on April 1, 2017.<br />
<br />
If real life read more like a Hollywood script, the prison doors would swing open and the wrongly convicted inmate would walk out to freedom as soon as evidence surfaced to prove his innocence.<br />
<br />
That’s not how it works in Michigan.<br />
<br />
It can take years to undo a bad conviction and unlock the cell door.<br />
<br />
Even when physical evidence like DNA and fingerprints is conclusive. Even when witnesses recant their testimony. And even when someone else confesses to the crime.<br />
<br />
That shouldn’t be true. Once there is strong evidence to suggest an innocent person might be behind bars, the top priority of the legal system should be determining the legitimacy of the claim and, if it holds up, getting him or her out.<br />
<br />
Justice moves slowly for good reasons; both the defendants and prosecutors need adequate time to prepare their cases, and the courts aren’t fast food joints — getting it right takes time.<br />
<br />
But when an innocent person is living the nightmare of prison, time matters.<br />
<br />
Dave Moran, who directs the University of Michigan Innocence Clinic, says exoneration of the cases he’s been involved in took on average of four years — and that’s after months or years have already been spent gathering and analyzing evidence. The clinic has had some cases take up to nine years to move through the system.<br />
<br />
<br />
In many instances, getting the evidence requires Freedom of Information Act (FOIA) requests and, if the information isn’t delivered, going to court to get it released. That would be one place to look if the goal is to take time off the process.<br />
<br />
The request for a rehearing based on new or re-examined evidence often goes before the same judge who heard the case, and could be handled by the same prosecutor. That creates an environment of defensiveness, a reluctance to see the case in a new light, and an instinct to stall.<br />
<br />
Nearly all of the wrongful conviction filings eventually end up in the Court of Appeals, where things really slow down. The cases go to the bottom of the pile and have to work their way to the top.<br />
<br />
Expediting the process is not easy, but it is something the Michigan legal system should examine.<br />
<br />
Fast-tracking cases where the evidence of wrongful conviction is compelling would be a start.<br />
<br />
But first, a process for establishing credibility must be put in place.<br />
<br />
I covered prisons early in my career and learned one thing: Everyone in the pen is innocent — according to them. The state would have to be able to separate the seemingly legitimate claims from the obviously frivolous ones.<br />
<br />
The state attorney general’s office might be able to do that by setting up a procedure for reviewing the evidence and moving the credible cases onto a fast track. There’s a downside to that approach — if the AG’s office deems a case as illegitimate, it could hurt its chances in the courts.<br />
<br />
The appeals courts should treat wrongful conviction claims as they do parental custody cases and give them an expedited timetable.<br />
<br />
Beyond that, it’s absolutely essential the courts change absurd rules that allow judges to deny a request for relief if the evidence the appeal is based on was available during the original trial, but not presented. There are a lot of reasons evidence and testimony might have been held back.<br />
<br />
There are no good reasons for keeping the wrong person locked up based on a technicality.<br />
<br />
It should bother us all to know there are innocent people rotting away in our prisons. With a turn of fate, that could be you or me. If there are things we can do to right this wrong, we should be all over them.<br />
<br />
<a href="mailto:nfinley@detroitnews.com">nfinley@detroitnews.com</a>Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-52183675398880955102017-03-22T04:28:00.002-05:002017-03-22T04:28:11.083-05:00The Abortion of Justice Suffered by Innocent PrisonersThe following opinion by Lorenzo Johnson was published by the Huffington Post on March 20, 2016.<br />
<br />
Is society surprised that, for the third straight year, a record number of exonerations have occurred—166 in 2016? Or have innocent prisoners become the norm? It’s great that some of us are being exonerated, but what does this say about our criminal justice system as a whole—and therefore about how many innocent prisoners are not being exonerated?<br />
<br />
Once again, another record has been set in dealing with official misconduct. The sad thing is, society has no inkling of how the same prosecutors who are responsible for these wrongful convictions fight so hard to maintain their false convictions knowingly and intentionally. Take note, in these exonerations, of how many (if any) of these prosecutors admitted to their wrongdoing or apologized to the innocent prisoner.<br />
<br />
Since 2011, the numbers for exonerations have steadily climbed higher and higher each year. As a matter of fact, the record number of exonerations in 2016 doubled the number in 2011. The National Registry of Exonerations stated in their <a href="https://www.law.umich.edu/special/exoneration/Documents/Exonerations_in_2016.pdf">2016 Report</a>:<br />
<br />
<i>The exonerations in 2016 set several other records as well. They include more cases than any previous year in which: Government Officials committed Misconduct; The convictions were based on Guilty Pleas; No crime actually occurred; or a prosecutorial Conviction Integrity Unit worked on the exoneration.</i><br />
<i><br /></i>
As an innocent prisoner, my wrongful conviction stemmed and continues from official misconduct, ranging from police threatening/pressuring witnesses to prosecutors withholding exculpatory evidence of my innocence. My appeal has been “slow walked” because I’ve been vocal about my injustice. I guess they wanted me to sit in this cell and be quiet and serve a life sentence for a crime I never committed? Not going to happen.<br />
<br />
In 2016 it was an average of three innocent prisoners being exonerated every week. But, in reality, these numbers do not scratch the surface of us innocent prisoners waiting to be freed. The only way to help seriously curb our injustices is to hold the officials criminally responsible once they’re found guilty of knowingly and intentionally convicting an innocent person.<br />
<br />
A day in prison for an innocent prisoner is too long. But it takes an average of 13½-15 years for exonerees to get their freedom. I ask society, please help change our current reality.<br />
<br />
Lorenzo Johnson served 16 and a half years of a life-without-parole sentence until 2012, when the Third Circuit Federal Court of Appeals ruled there was legally insufficient evidence for his conviction. He remained free for four months, after which the US Supreme Court unanimously reinstated the conviction and ordered him back to prison to resume the sentence. With the support of <a href="http://innocenceprojectpa.org/">The Pennsylvania Innocence Project</a>, he is continuing to fight for his freedom. Though he does not have internet access himself, you can <a href="mailto:lorenzojohnson17932@gmail.com/">email</a> his campaign, make a <a href="http://freelorenzojohnson.org/how-can-i-help/">donation</a>, or sign his petition and learn more at: <a href="http://www.freelorenzojohnson.org/sign-the-petition.html">http://www.freelorenzojohnson.org/sign-the-petition.html</a>.<br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0tag:blogger.com,1999:blog-27687583.post-90610324225915828742017-03-20T04:26:00.004-05:002017-03-20T04:26:53.588-05:00CYA rules for Wayne County. Michigan prosecutorThe following column by Nolan Finley was published by the Detroit News on March 18, 2017.<br />
<br />
Covering your fanny is a natural instinct. No one is crazy about admitting to a big, awful mistake.<br />
<br />
But when that error costs someone his freedom, and you’ve sworn yourself to getting justice right, not being able to say “I got it wrong” is more than just a character flaw; it puts you on the wrong side of morality.<br />
<br />
That’s where too many prosecutors stand in Michigan, and particularly in Wayne County.<br />
<br />
Yet another case is in the news of the Wayne County Prosecutor’s Office clawing to suppress evidence that might exonerate a man convicted of murder and locked up since 1992.<br />
<br />
Desmond Ricks contends Detroit police framed him by switching out the bullets found in the murder victim. The ballistics expert who testified against him now concurs, and the University of Michigan’s Innocence Clinic found the evidence compelling enough to take the case.<br />
<br />
I don’t know if Ricks is innocent. But I do know that when presented with the credible evidence that he might be, the response from Wayne County Prosecutor Kym Worthy should have been to take a hard look with an open mind. Instead, Worthy’s office dismissed the claim outright, according to the Associated Press, as “ingeniously imaginative.”<br />
<br />
That might be acceptable were it not for Worthy’s track record. The wrongful conviction claim by Ricks is not a one-off. At least six times in recent years inmates prosecuted by Wayne County have had their convictions overturned after serving long sentences. And in every case Worthy battled till the end to keep them imprisoned.<br />
<br />
I asked David Moran, director of the Innocence Clinic, if Wayne County ever admits it made a mistake. “Not to us,” he said.<br />
<br />
Moran says some Michigan prosecutors are responsive when a wrongful conviction claim is raised, will look at the evidence and in many cases seek to corroborate it with their own investigation.<br />
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He cited as an example former Ionia County Prosecutor Ron Shafer, who, when presented with evidence that a man convicted of killing his wife and two daughters in an arson fire did not commit the crime, signed an order of release that very day.<br />
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But that’s not the norm.<br />
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“In many prosecutor’s offices, there’s a denialism that a mistake was made,” Moran says. “They are more worried about how the office might look than they are about justice.”<br />
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In a highly publicized case last fall, Davontae Sanford, who was locked up at age 14 for murders everyone had to know he didn’t do, won his release. But in an epic example of obstinacy, Worthy still has not charged the person whom the evidence suggests is responsible.<br />
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The Innocence Clinic has a dozen more wrongful conviction claims pending in Wayne County. Moran cites the case of Lamarr Monson, who was convicted of murdering a 12-year-old girl in 1996.<br />
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Under interrogation, Monson admitted to killing the girl with a knife. Big problem: She was bludgeoned to death with a ceramic toilet tank cover. But Monson was locked up anyway. Police lifted bloody fingerprints from the lid, but couldn’t identify them at the time. Now they can, and they belong to a Pennsylvania man.<br />
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“It’s hard to believe (Worthy’s office) wouldn’t be holding a press conference demanding the governor of Pennsylvania extradite him,” Moran says.<br />
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Instead, Worthy is hunkering down again, fighting to keep Monson in a cell. “They don’t want to admit they made a mistake 21 years ago,” Moran says.<br />
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I don’t know what motivates such stubbornness. But it sure ain’t justice.<br />
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<a href="mailto:nfinley@detroitnews.com">nfinley@detroitnews.com</a><br />
<br />Truth in Justice Fileshttp://www.blogger.com/profile/11287997013742675577noreply@blogger.com0