Why Won't California Release Innocent Men from Prison? Gov. Jerry Brown has the power to exonerate them, but he won't use it.

The following opinion by Steven Greenhut was published by Reason.com on July 4, 2014.

SACRAMENTO — Gov. Jerry Brown and the legislature have been cutting down on prison overcrowding to comply with a federal court order, thus leading to a "realignment" policy that moves inmates from state-run prisons to county jails and a policy that may result in some early releases.

Whatever one thinks of the governor's handling of this matter, it's hard to understand why he hasn't pursued his prison-reduction efforts by harvesting some low-hanging fruit – i.e., releasing from prison those inmates who almost certainly are not guilty of the crimes for which they've been convicted. The governor, after all, has the power to grant clemency and pardons.

Why not act on the evidence surrounding the so-called California 12?

Those are the 12 California prison inmates whose cases have been investigated by the California Innocence Project, a legal clinic at the California Western School of Law in San Diego. The group has secured the exoneration of 11 California inmates. U-T San Diego in March reported on its client, Uriah Courtney, who served eight years of a life sentence for rape before DNA evidence pointed to the real perpetrator.

Each year, the school's legal team receives more than 2,000 claims from inmates. It brings to mind the line from the prison movie, "The Shawshank Redemption," in which one of the characters says, "Everybody's innocent in here. Didn't you know that?" But while many people claim to be innocent in prison, some of them actually are innocent. And while the numbers might not be large, the sense of injustice is overpowering.

"I'm pretty darn cynical," the project's director, Justin Brooks, told me after a Friday rally at the Capitol steps. Of the thousands of cases his team reviews, they usually end up with one or two. These are cases where he is 100 percent convinced of the inmate's innocence. But even when the evidence is strong, it's hard to get action on the cases.

Prosecutors aren't always cooperative when it comes to reviewing some of their possible past mistakes, although Brooks says that San Diego County District Attorney Bonnie Dumanis has been an admirable exception. She always sits down and looks at the evidence.

But the courts are reluctant to reopen a case unless there is some new piece of evidence or a new technology (i.e., DNA), he explains. If, for instance, the defense simply did a bad job or didn't call a witness who could have exonerated the defendant, then it's nearly impossible to get a new hearing.

For instance, one of the California 12 is Quintin Morris, who has served 17 years in prison for three counts of attempted first-degree murder, even though another man later admitted the crime. The court found that such a confession should have been presented at the trial and rejected efforts to free him.

As the Innocence Project explains on its website, "A federal judge noted that his hands were tied and he could not reverse Q.T.'s conviction because there were no 'legal avenues to do so.' The judge expressed serious concern over whether Q.T. committed the crime and suggested that Q.T. specifically apply for a pardon from the governor."

All of the California 12 cases are equally disturbing, and while Brooks says his group is pursuing legal avenues on all of them, their best hope remains petitioning the governor for pardons, as the federal judge has recommended in the Morris case.

So last year, Brooks and two colleagues marched 712 miles to the Capitol to get some publicity for their cause. And after another year of inaction from the governor, they came back to the Capitol and again tried to spark some publicity.

"We've had several conversations with the Innocence Project and their materials are being reviewed," said the governor's office, in response to my inquiry.

On the Capitol steps, I talked to Tim Atkins, who spent 23 years in prison for murder before being released after the Innocence Project found that the conviction was based on a faulty eyewitness report. He described his nightmare — one that finally ended with an apology and exoneration from the same judge who had sentenced him years ago.

"Any kind of injustice affects us all," Atkins said. Maybe if the cost-saving argument doesn't reach the governor, a simple ethical one might.

Steven Greenhut is the California columnist for U-T San Diego.

‘Presumption of innocence’ fading away

The following opinion by Michael Swickard was published on July 2, 2014 by the Albuquerque Journal.

“The media’s the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power. Because they control the minds of the masses.”

— Malcolm X

Several times a week there is something in the media that makes me queasy. Someone will have been arrested, so the media give all the details of the crime in such a way that for most people there is no other conclusion than the person is guilty. Every detail is on the front page for all to see, even those details that the police plant in the press to move the case forward.

The presumption of innocence is one of the founding principles of our country. But over the years, citizens have lost that presumption. In the Old West, often the low-down dirty varmint was hung and then given a trial. Example: at Boot Hill in Tombstone, Ariz. is this marker:

“Here lies George Johnson hanged by mistake 1882.

He was right, we was wrong,

But we strung him up, and now he’s gone.”

Several times a month I protest the way the media frame the story such that guilt can be the only conclusion. I protest to the media that they only carried the prosecution’s message. They are usually huffy about any criticism since everyone knows that when someone is arrested, they are guilty.

Not the issue

They answer the defendant will get his or her day in court. But that is not the issue. The jury pool is contaminated by the media framing the story from the prosecution’s point of view. The media often are intimidated by the police and if they do not play ball, so to speak, they are frozen out of the information loop.

Further, as some of us remember, there have been several seemingly iron-clad cases against citizens that subsequently turned out to be incorrect. What is remembered is that the person was handcuffed and perp-walked into the jail on nighttime television. It is rarely remembered that the person was really innocent.

Other times the police are fishing and the media work hand-in-hand, such as the attention paid to the boyfriend of Katie Sepich, a Las Cruces woman murdered in 2003. The boyfriend turned out years later to be completely innocent. But he was the number-one suspect for a while. The media cried foul when he hired an attorney… whispering only guilty people do that. Again, he was completely innocent.

Arrest is big news

The arrest is big news. We citizens hear of the charges on the front page with all the personal details, including the name of the arrested person’s dog. Story after story is published that gives the details of the facts of the case over and over again with no prosecution stone left unturned. No exculpatory evidence is mentioned.

Then, the story changes for some citizens and we learn they are innocent of the charges. But many Americans do not see the clearing of innocent citizens since the story of innocence is usually published in the middle of the newspaper next to the bookmobile schedule.

Again, what we are talking about is the presumption of innocence. This is an American legal principle that requires our government to prove the guilt of the defendant, and even more importantly, it relieves said defendant of any burden to prove his or her innocence. If someone decides not to defend themselves against charges, they are still presumed innocent unless and until convicted of the crime. At least that is the theory.

Haste to be first

One of the problems I am seeing is the reporter’s haste to be the first with the story, right or wrong.

The problem is that journalists no longer consider that they are in the middle of a story; rather, they become, in effect, junior policemen because that is where the information is initially. And again, the police and prosecution play the journalists as far as they can to win their case.

Perhaps the Constitution is dead; perhaps there is not even a First Amendment.

Perhaps the journalists who rush to judgment will find themselves one day on the wrong side of the law and truth and the presumption of innocence.

(Michael Swickard hosts the syndicated radio talk show “News New Mexico” from 6 to 9 a.m. Monday through Friday on a number of New Mexico radio stations and through streaming. Email: michael@swickard.com)

Why Connecticut needs a conviction integrity unit

The following opinion by David R. Cameron was published in the New Haven, CT Register on June 19, 2014.

The greatest shortcoming in the American system of criminal justice is its propensity to wrongfully convict individuals of serious crimes and then, once evidence surfaces that suggests a wrongful conviction, refuse to reopen the investigation.

In recent years, as prosecutors have become increasingly aware of the frequency and various causes of wrongful convictions, some have created a conviction integrity unit to reexamine the evidence in cases in which there’s good reason to believe a wrongful conviction occurred because of mistakes in the initial investigation, eyewitness misidentifications, perjury of witnesses, and/or official misconduct.

Since 2007, such units have been created in more than a dozen cities and counties across the country — first in Dallas and then in Chicago and Cook County, San Jose and Santa Clara County, California, Manhattan and Brooklyn in New York, Detroit and Wayne County, Denver and, most recently, Philadelphia and Cleveland.

In most of the cases reviewed, the convictions have remained in place. Nevertheless, the re-examinations have resulted in the dismissal of 33 convictions in Dallas, four in Manhattan and seven thus far in Brooklyn.

There are instances in which the evidence of actual innocence that surfaces after a conviction is so persuasive that prosecutors will ask a court to throw out a conviction.

The most authoritative proof of actual innocence is, of course, the presence at the scene or on the victim of the DNA of someone other than the person convicted of the crime. The New York-based Innocence Project reports that, since 1989, 316 wrongful convictions have been thrown out because of DNA evidence that conclusively tied someone other than the person convicted for the crime. In Connecticut, three such exonerations have occurred over the past eight years.

But those cases are a proverbial drop in the large bucket of wrongful convictions that have occurred over that 25-year period, both in the U.S. and in Connecticut. There are some cases in which, although there is some DNA evidence that points to someone else as the perpetrator, that evidence doesn’t constitute proof of actual innocence.

And there are many, many others in which there is no DNA evidence at all. Indeed, experts estimate that in roughly 95 percent of all convictions for serious felonies there’s no DNA evidence at all.

For those cases, the only recourse of the wrongfully convicted is a habeas petition for a new trial or release on the grounds of actual innocence. But as we have seen, the habeas process in Connecticut is deeply flawed: The appeals drag on for years, the Superior Court judges who hear them often seem to be unschooled in criminal law and make egregious errors in interpreting evidence, and the prosecutors care only about defending their convictions.

Take, for example, the case of Richard Lapointe. Lapointe was convicted and sentenced to life without parole in 1992 for the sexual assault and murder of Bernice Martin, his wife’s 88-year-old grandmother, in Manchester in 1987.

In 2011, a habeas judge rejected his appeal for a new trial. The Appellate Court reversed the judge a year later and ordered a new trial on the grounds that the state’s failure to turn over a detective’s notes deprived him of a fair trial. The notes suggested the fire set by the murderer was set when Lapointe was home with his wife and son.

It also ruled that his first habeas lawyer provided ineffective assistance by failing to raise the state’s suppression of the notes as an issue. The state appealed the reversal to the state Supreme Court last year and we now await, 22 years after his original conviction, a decision whether Lapointe will receive a new trial.

And yet there has been evidence for some time that suggests that someone other than Lapointe committed the crime. A woman driving by the housing complex where Martin lived at about the time of the murder had to swerve to avoid hitting a man running “like he was being chased by a pack of dogs” from the housing complex. The man didn’t look at all like Lapointe.

A man who had been at a bar in the vicinity of the housing complex and who resembled the running man committed a strikingly similar sexual assault in a neighboring town four days later.

Several partial DNA profiles were found on the inside lining of gloves found on and near the bed where the woman was attacked, none of which matched Lapointe’s DNA.

A pubic hair on the sweater the woman had been wearing contained mitochondrial DNA — the DNA contributed by a person’s mother — that came from someone other than the woman or Lapointe.

Lapointe was convicted on the basis of his supposed confession to the crime. But there is ample evidence from detectives’ notes of his nine-hour interrogation that Lapointe, who is developmentally disabled, provided a false confession.

Every likely wrongful conviction should be regarded as a cold case waiting — and demanding — to be solved. But rather than reopening the Martin investigation and looking at it as an unsolved cold case, the state has continued to defend the original conviction.

In recent years, Connecticut has enacted important legislation designed to prevent wrongful convictions. It has required that confessions to serious crimes be videotaped, in order to prevent false confessions.

And in 2012, it mandated the blind or double-blind administration and sequential presentation of a suspect and fillers in a lineup or photo array in order to minimize eyewitness misidentifications — the single most frequent cause, by far, of wrongful convictions.

The state now leads the country in preventing wrongful convictions. There is no reason it should not also lead it in correcting the wrongful convictions that occurred in the past. Rather than relying exclusively on a habeas process that is overloaded with frivolous appeals and drags out appeals for decades, the state should follow the example of many large cities across the country and create a conviction integrity unit in the office of the chief state’s attorney.

David R. Cameron is a professor of political science at Yale and a member of the state’s Eyewitness Identification Task Force.

New York Legislature ignores shameful reality, refuses to act on wrongful convictions

The following editorial was published by the Buffalo News on June 30, 2014.

Lynn DeJac Peters had her life stolen from her, permanently by cancer earlier this month and, prior to that, for almost 14 years by the State of New York. There’s only so much anyone can do about cancer, but there’s a lot that New York can do about sending innocent people to prison. But it won’t – or, at least, it hasn’t.

Albany had the chance to do that this month and, once again, it failed. If that isn’t the secret shame of this boastfully progressive state, then the state is simply beyond shame.

It’s not that New York purposely convicted DeJac Peters of murdering Crystallyn Gerard – her own daughter – knowing she was innocent of the crime. A terrible confluence of human failing and inadequate systems led police, prosecutors, a jury and a judge to believe she had committed one of the worst crimes imaginable. It was due only to the diligence of Buffalo police cold case detectives that this terrible miscarriage of justice was discovered and ultimately accepted by the Erie County District Attorney’s Office.

DeJac Peters was released from prison in 2007. Just two years ago, with the State of New York dragging its heels – par for the course – she was awarded $2.7 million for 14 years of hell on earth she endured because of New York’s mistake.

The issues that lead to many wrongful conviction aren’t a mystery. Principal among them are witness misidentification and false confessions. They are problems caused by human error. What is needed are better systems that will diminish the likelihood those defects will grind up more New Yorkers.

Other states have changed procedures regarding lineups and other identification procedures and have also begun recording interrogations, which helps to guard against false confessions. New York hasn’t done that. It needs to. If DeJac Peters were the only person ever to have been wrongfully convicted, an ethical state government still would be compelled to examine the issues. But she is not the only one. Far from it.

Anthony Capozzi, also of Buffalo, was wrongfully convicted of rape. While he rotted in prison, the real rapist began murdering women in Western New York. The man suspected of killing Crystallyn, Dennis P. Donohue, is now in prison for murdering Buffalo resident Joan Giambra – nine months after Crystallyn was killed. There is a cost for failing to come to grips with this problem, and it is measured in blood. New York shrugs.

Only this month, another infamous case of wrongful conviction was finally settled. In 1989, five New York City teenagers were wrongfully convicted in the notorious Central Park Five case. The teens, some of whom falsely confessed while under intense police pressure, were convicted of a brutal assault on a jogger in Central Park. In 2002 the convictions were overturned because the men – they were no longer teenagers – were innocent. Someone else had committed the crime. Their civil case was settled only this month for a total of about $41 million – 12 years after their exonerations.

In his State of the State address, Gov. Andrew M. Cuomo recognized the problems in New York’s criminal justice system and pushed for reforms.

A deal had been taking shape in Albany this month to make a decent start on dealing with the issues of misidentification and false confession, but in the rush to end the session, and apparently over concerns about the costs of recording equipment, it didn’t happen. Again.

Some reports suggest the issue could be taken up in a fall session of the Legislature. It needs to be. Albany doesn’t understand – or doesn’t care – that every delay puts more innocent people at risk, not only for wrongful conviction, but for being victimized by someone who should have been sent to prison but escaped notice because the wrong person was convicted.

Judge H. Lee Sarokin - Speaks Out on Missing Transcript Needed for Appeal in IRP6 case in Colorado -

Judge H. Lee Sarokin served on the United States District Court (N.J.) appointed by President Carter, and the United States Court of Appeals (3rd Cir.) appointed by President Clinton. He retired in 1996 after 17 years on the federal bench and now resides in Rancho Santa Fe, CA.  He is also known for, overturning the Rubin “Hurricane” Carter wrongful convictions case in 1985.

Part I:  The Case of the Missing Trial Transcript

Defendants in a Colorado case, United States of America v. Banks et al., claim, in addition to asserting their innocence, that their Fifth Amendment rights were violated when the trial judge compelled them to testify. Following a jury trial, all six defendants (five black and one white), known as the "IRP6," were convicted of mail fraud or conspiracy, were sentenced to terms of imprisonment ranging from 87 to 135 months beginning in July 2012, and are presently incarcerated pending appeal. They represented themselves during the trial, and although they were aware of their right against self-incrimination (and named themselves on a potential witness list), they contend that the judge compelled waiver of that right. Apparently the judge was frustrated by their failure to produce witnesses in a timely fashion, and they claim the judge said something that led them to believe that at least one of them had to testify in order to keep their defense open. The case is now on appeal. Usually out of deference to the circuit court handling the matter, I would not comment. However, there is one aspect of the case that intrigues me, and since the matter has been pending for a considerable period while the defendants languish in  prison, I thought some general airing might be appropriate.

Resolving the issue should be a no-brainer, right? Look or listen to the transcript; read or hear what the judge said and decide whether or not the defendants reasonably concluded that at least one of them had to testify. But here's the rub. There apparently is no record or transcript of the conversation available to either the defendants or the appellate court. The advocates for the defendants (a-justcause.com), who have asked me to review and comment on this matter, claim that efforts to obtain the record of the conversation between the judge and the defendants on this issue have been met variously with claims that there is no record (the reporter missed the conversation), that it exists but is missing, that it existed but has been destroyed, or that "we have it but won't turn it over." They also claim that all informal and formal attempts to obtain that critical exchange between the court and the defendants have been denied either by the court reporter or the court. They advise that the relief was even denied in a separate civil suit brought against the reporter for the turnover of the transcript.

Because there is always a danger in these matters of hearing one side, I insisted that I be furnished with the government's version of what transpired in this disputed exchange. The government's brief (U.S. Answering Brief) summarily dismisses the claim by stating, "Because nothing in the record other than the defendants' own self-serving assertions supports their claims of compulsion,the exact language used by the district court during the sidebar conference is immaterial" (emphasis mine). Roughly translated, the statement should read, "There is nothing to support the defendants' position on the record, because there is no record." It is an obvious concession by the government that the record before the court of appeals does not contain evidence of what the trial judge said to the defendants -- which they claim caused them to  believe that they had to testify or be foreclosed from proceeding with their case.

Although the defendants vehemently proclaim their innocence, I do not have sufficient information to comment on their convictions. But I have no doubt that whether or not they felt compelled to testify depends exclusively on what the judge said to them at that precise moment. To suggest that the court's "exact language" is immaterial is ludicrous, particularly since the court and the defendants disagree as to what was said.

Certainly no judge would direct a criminal defendant to testify against his or her own will, but it is conceivable that something was said that reasonably led them to that conclusion. The answer lies in the record, which apparently does not exist, for reasons that seem to be elusive. The case raises numerous other serious questions about the prosecution, conviction and incarceration  pending appeal of these defendants, but my comfort level limits me to this one strange mystery: the missing transcript. The case does raise the question of why six respected businessmen would engage staffing companies to hire and pay workers for a project that (as the government contends) defendants had no intention of completing and selling. Were they just interested in increasing the level of employment in their community? Or were they merely a typical company whose goals were delayed in fruition, did some puffing in the process and owed money as a result?

Law shouldn't discourage the truth

The following editorial was published by the Chicago Sun Times on May 5, 2014.

Our court system must always keep a door open for the truth, but too often it is closed.

Under a badly written Illinois law, a person can be charged with perjury for admitting that his or her earlier testimony — even if given many years earlier — was a lie.

That’s problematic, because a fair society wants people to come forward if they’ve caused an injustice by lying under oath. But if they fear going to prison for doing so, you can bet they’ll keep their mouths shut.

In one well-known Cook County case in 1985, a woman named Cathleen Crowell Webb came forward and said she had lied eight years earlier when she accused a man named Gary Dotson of raping her. Authorities didn’t believe her until DNA testing proved Dotson’s innocence in 1988. He finally was pardoned in 2002.

At the time, the Cook County state’s attorney could have prosecuted Webb for perjury, but he didn’t. That turned out to be a wise decision.

Now, former U.S. Attorney and Gov. Jim Thompson, who personally led clemency hearings in 1985 on the Dotson case, is among 23 highly regarded former judges and prosecutors who are worried about a new case that could have a chilling effect on future witnesses who want, finally, to come clean. On April 24, the former judges and prosecutors sent a letter to State’s Attorney Anita Alvarez expressing concern about the perjury prosecution of a man named Willie Johnson.

Johnson, who had a serious criminal record of his own, first testified in 1994 against Cedric Cal and Albert Kirkman when they were on trial for a double murder on the South Side. But seven years later, in 2011, he testified that he had lied because telling the truth back then would have endangered him and his family. By then, Johnson had moved out of Illinois, had been disabled in a car accident, was married and living on Supplemental Social Security Income, and was staying out of trouble. But a judge ruled Johnson’s recantation was not credible, just as an earlier judge had ruled Webb’s recantation was not credible, and Johnson was charged with perjury.

In their letter, the former judges and prosecutors warn that the perjury charges are “contrary to the interests of justice,” and they certainly should know. Their collective experience with our criminal justice system, from all perspectives, is deep, broad and sophisticated. They know of what they speak.

Just as they urge, the perjury charges should be dropped. And the law, we would add, should be rewritten.

The problem with the law is that it says you are automatically guilty of perjury if you give two contradictory statements, even if the second statement is the truthful one and the first is beyond the normal three-year statute of limitations on perjury. That makes doing the right thing a crime. We are reminded of the way government whistleblowers used to be treated, when they could be punished for coming forward even if they were telling the truth.

We’ve seen a parade of exonerations over the years, across the state, in which innocent people were freed from prison — even death row — and a big piece of those exonerations often has rested on admissions from witnesses that they’d lied at the original trials. Often, the witnesses had been persuaded to lie in the first place as a kind of public service — they would be putting a bad guy behind bars.

Our criminal justice system depends on witnesses taking their oaths seriously, and there should be penalties when they do not. It is also true that prosecutors cannot and should not reopen a case every time a witnesses changes a story. As in the Gary Dotson case, where new DNA evidence emerged, something more than a recantation typically is required.

But to discourage recantations that might be true by pressing perjury charges too aggressively — that turns the truth-finding mission of the courts upside down.

Sally Daly, a spokeswoman for Alvarez, said her office uses perjury prosecutions only in rare instances.

“We don’t believe it has a chilling effect, we really don’t,” she said.

We’re not so sure future would-be recanters, finally looking to tell the truth, will see it that way.

Conviction Reviews Could Spare Innocent, State

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

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

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

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

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

Special Unit

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

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

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

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

Habeas Glut

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*  *  *

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

Freedom For Ryan Ferguson Should Lead To The Release Of His Co-Defendant Charles Erickson

The following opinion by Bruce Fisher was published by GroundReport.com on March 26, 2014.

Columbia Tribune Sports Editor Kent Heitholt was brutally murdered on November 1, 2001, in Columbia, Missouri. Heitholt was attacked in the Tribune parking lot as he left work. His body was discovered next to his car. Heitholt had been struck from behind sustaining multiple head injuries and was strangled with his own belt. Fellow Tribune employee Michael Boyd was the last person to see Heitholt alive. Boyd claims that he met up with Heitholt briefly in the parking lot before driving away at around 2:20 AM. Police had no solid leads in the first 2 ½ years of the investigation.

In late 2003, Charles Erickson read an article published by the Columbia Tribune discussing the unsolved murder of Kent Heitholt. Unfortunately, Charles and his friends partied too hard that Halloween night, leaving Charles with no recollection of his actions at the time of the murder. It has been reported that party-goers, including Charles, were experimenting with Adderall, cocaine, and alcohol at a party that was broken up by police. Charles left that party and ended up catching a ride with Ryan Ferguson to the “By George” bar near the scene of the crime. When browsing through news reports, Charles feared that he resembled a composite sketch released by police. Knowing only that he was at a bar near the scene that night, caused him to worry that he might be involved.

Over a period of time, Charles began telling friends that he had a dream, leading him to think that he and Ryan Ferguson may have been involved in the murder. One of the friends that Charles spoke to called Crimestoppers with a tip and another friend would later call the police, leading Charles to find himself in an interrogation room trying to answer questions about a murder that he had nothing to do with.

At the time of his interrogation, Charles was very confused about the events that took place that night. When viewing his interrogation video, it is clear that Charles knows very little about the crime. The detectives spoon-feed Charles unreported details of the case, and pressure him into providing a false confession while implicating Ryan in the process.

Coming from a family with a history in law enforcement, Charles thought he could trust the police officers that were interrogating him. Unfortunately Charles was misled, causing him to plead guilty to the crime and provide false testimony against Ryan Ferguson in return for a reduced sentence. Ryan was wrongfully convicted in 2005, and sentenced to 40 years in prison.

Investigators used extremely poor judgment when making the decision to extract a false confession out of a young man that was in no position to give a proper statement. Charles must not be held accountable for the egregious misconduct of the police investigating the Heitholt murder. Charles must not continue to be punished for a murder he did not commit. The Heitholt family deserves justice. The continued incarceration of Charles Erickson brings no justice and no real closure for the family of the victim.

When given the opportunity, Charles recanted his statements implicating him and Ryan Ferguson, and he has done everything in his power to help set the record straight, not only for Ryan, but also for the Heitholt family.

Thankfully, Ryan Ferguson was finally freed on November 12, 2013, after serving nearly ten years in prison. Charles Erickson remains wrongfully convicted, and is currently serving a 25 year prison sentence.

Ryan Ferguson’s attorney Kathleen Zellner recently filed a civil rights lawsuit seeking $100 million in damages for the wrongful conviction of her client. Zellner’s 50 page report details the egregious police misconduct that resulted in two innocent people being wrongfully convicted.

It is now blatantly obvious that Charles Erickson had absolutely nothing to do with the murder of Kent Heitholt. Proving Ryan Ferguson’s innocence also proves Charles’s innocence. Anyone that supports Ryan Ferguson, based on the facts of this case, should support the release of Charles Erickson.

This case continues to highlight the terribly flawed Missouri justice system. It is time for the nonsense to end. It is time to free Charles Erickson.

Charles Erickson is now being represented by Attorney Laura O’Sullivan, a professor at University of Missouri – Kansas City School of Law, and Senior Counsel with the Midwest Innocence Project. O’Sullivan voiced strong support for her client shortly after Ryan Ferguson’s release:

“Charles Erickson is relieved and overjoyed that Ryan Ferguson was released. Charles Erickson is a victim of the system. I will fight diligently and relentlessly for his release. Fifty percent justice is not enough, half the story won’t do. We need to finish the job of finding justice, justice for Charles Erickson, and ultimately, the Heitholt family”

A 48 Hours segment on the case, including an interview of Charles with Erin Moriarty is scheduled for March 29, 2014. Please be sure to check your local listings.

A new website has been created by Injustice Anywhere to help bring more attention to the Charles Erickson case. Please visit FreeCharlesErickson.org to learn more about this case.

You can also keep up to date with current events on the Free Charles Erickson Facebook page.

Fast Track Executions?

The following opinion by K.C. Cole was published by the Los Angeles Times on March 18, 2014.

What's wrong with this picture?

Exonerations of wrongly convicted prisoners are at an all-time high. Last month, the governor of Washington put executions on hold because, since 1981, when the state last updated its capital punishment laws, a majority of the 32 death sentences that were imposed were overturned. More than a dozen other states have also called a halt to executions, for various reasons.

And yet, three former California governors — George Deukmejian, Pete Wilson and Gray Davis — are urging the state to speed up a clearly flawed process of deciding who's to die. Their approach could theoretically limit the state appeals process, which now generally takes 12 to 15 years, to five years.

It may be easy for most people — even former governors — to ignore or dismiss these injustices. Many of the wrongly convicted are poor black men, invisible to the majority of Americans. Too many of us buy into what's on TV detective shows: irrefutable scientific tools that identify the guilty beyond a shadow of a doubt. Plus, nobody wants to admit that blameless people have died at the hands of the state. Humans will do almost anything to preserve their self-regard, including avoiding the implications of exonerations, every one of which, as social psychologist Carol Tavris says, "is stark, humiliating evidence of how wrong you are."

The facts should send chills up anyone's spine.

Take eyewitness testimony. According to the Innocence Project, which uses DNA evidence to challenge wrongful convictions, eyewitness misidentification is the culprit in more than 70% of the cases. 

Researchers have pinpointed the way misidentifications increase dramatically across class, age and racial lines. A recent Stanford study found that an interviewer's perception of whether subjects were white or black changed depending on such circumstances as where the subjects lived and whether they had been imprisoned.

Memory, an obvious aspect of eyewitness evidence, is just as insidious. "I remember what I saw" is a misleading illusion. And despite what instinct tells you, those who tell very detailed and consistent stories are more likely to be liars than those who are uncertain or self-contradictory.

Memory is malleable. It can be easily "primed" or implanted, when statements are heard again and again. As Nobel laureate in economics Daniel Kahneman points out, "familiarity is not easily distinguishable from truth." That phenomenon may explain why innocent people confess, usually after hours of persuasive talk from prosecutors. Up to a fifth of those later found to be innocent confessed to the crime.

Popular television crime shows suggest that misperceptions and flawed memories don't matter because "scientific" evidence trumps all. In truth, what witnesses see and hear and experience is still often the only evidence presented. Worse, "scientific" evidence isn't necessarily reliable or even scientific.

A single fingerprint can land you in jail, and yet the notion that everyone possesses a unique set of prints has not been proved beyond a doubt. Though certainly useful, fingerprints are not the fail-safe method of establishing identity that has been sold to courts and the public. Ballistics, hair sampling, matching teeth marks — all seemingly solid evidence — are potentially unsound. Texas has just decided to review convictions based on microscopic hair analysis, a forensic tool that DNA analysis has showed to be iffy at best. At least one Texas inmate, Claude Jones, was found guilty and executed in 2000 primarily because of microscopic hair analysis that was later proved wrong.

Even the gold standard of evidence — DNA — is only as good as the lab handling it. It can offer a billion to 1 or more probability that the suspect was at least present at a crime scene. But DNA samples are often small or degraded or simply misidentified. It's sobering to note, as the National Research Council did in a report in 2009, that only 60% of publicly financed crime labs even employed a certified examiner.

All forensic evidence is only as strong as its weakest link. Whether the lab is analyzing bones, hair or genetic material, an error rate of 1 in 100 could translate into many thousands of wrongly convicted people. The good news is that the reliability of all this evidence can be improved.

The Justice Department and the National Institute of Standards and Technology this year created panels of scientists and legal experts to finally set federal standards for forensic science and training practices. Eyewitness identification is more reliable if the officer conducting a lineup doesn't know who the suspect is, or if witnesses see the potential suspects separately rather than all at once. The forces behind false confessions become all too clear when interrogation sessions are taped. More research and more oversight are crucial.

Yes, the U.S. justice system ranks as one of the fairest in the world. But that doesn't exonerate it from the terrible mistakes it has made.

There's no doubt that many of the prisoners now on death row in California have committed unspeakable crimes. But if exoneration rates tell us anything, it's that some could well be innocent — the victims of bad science, wrong testimony and citizens who find it too easy to look the other way. Justice will never be perfect, but until the state acknowledges the gaps in the process and institutes reforms, it shouldn't be in a hurry to speed up the pace of executions.

K.C. Cole is a journalism professor at USC and a former science writer for The Times.

New evidence of wrongful conviction

San Antonio Express News Editorial published March 6, 2014

SAN ANTONIO — Attorneys and judges have long lectured us about the difference between not guilty and innocent. A not guilty verdict simply means the prosecution was not able to produce enough evidence to convince a jury beyond a reasonable doubt.

There is now new evidence of innocence and wrongful execution in the case of Cameron Todd Willingham, executed in 2004 in the arson deaths of his three daughters.

But if that “innocence” label bothers Gov. Rick Perry in weighing a posthumous pardon, he can still justifiably conclude that a “not guilty” verdict certainly should have occurred.

There exists plenty of compelling evidence that, had facts now known been known by the jury, there would have been such a verdict.

And had these facts been properly weighed or available, Willingham's execution would have been stayed. There might have been a new trial.

Even without weighing Willingham's “innocence,” Perry can clearly see justice too-flawed to warrant conviction, much less execution. This is the standard. And the new evidence just makes a stronger case that justice fell way short here.

A newly uncovered notation on a district attorney file strongly suggests that the jailhouse informant who testified that Willingham confessed to him had been given a deal from Navarro County DA John Jackson, now a district court judge.

The informant, Johnny Webb, told the court that he had received no deal. And Jackson has said none existed.

The notation was uncovered by the Innocence Project, which has petitioned the Texas Board of Pardons and Paroles for a posthumous pardon for Willingham. The project requested and got DA files connected to the case.

The notation — unsigned — was on the cover of the DA file on Webb's robbery charges. It read that the first-degree charge he had been convicted on should be reclassified to second degree “based on coop in Willingham.” Other documents show Jackson making attempts to get Webb an early release.

This is important because a claim in this case is that even if the arson evidence had not, even before Willingham's execution, been so thoroughly discredited, there was Webb's testimony.

Webb later recanted but Willingham's attorney was apparently never told of this, according to the Innocence Project.

In sum: Arson evidence so outdated it was useless in concluding guilt. Expert testimony to this effect before Willingham's execution.

And now the notation indicating the remaining evidence viewed as damning was secured with a promise of favorable treatment.

It's difficult to fathom an innocent reason for the notation on Webb's file. Favorable treatment, unpromised, but coming after the fact “based on coop in Willingham”? At the very least, this points to a wink-wink deal ensuring plausible deniability.

Perry's been here before. The Innocence Project asked the newly formed Texas Forensic Science Commission to investigative Willingham's case and another case as well.

Expert witnesses said fire investigators' testimony on the arson evidence in Willingham's case was seriously outdated.

But the commission, after Perry ousted some members, was ultimately barred by an opinion from Attorney General Greg Abbott from making a finding of negligence, though the investigation sparked a re-examination of how arson evidence is gathered and weighed. And it was a topic briefly in Perry's ill-fated presidential bid.

There is clear evidence in the Willingham case of the kind of flawed justice for which Texas, unfortunately, has become known. We understand the reluctance of death penalty advocates to give ground that points to an innocent person executed.

And, yes, Perry is the governor under whose watch Willingham was executed.

But the evidence is well beyond overwhelming, if not to innocence, at least to seriously miscarried justice and to a “not guilty” verdict if all facts were presented.

Governor, you can't bring back Willingham. You can, however, do as much as is now possible to right a wrong. Ultimately, this decision is yours. For belated mercy's sake, issue the posthumous pardon.

The wrongful conviction of Gerald O’Donnell

The following opinion by David Cameron was published on January 18, 2014 by the New Hampshire Register.

On Wednesday (January 15, 2014), Gerald O’Donnell was sentenced to four years in prison for bribing and tampering with Doreen Stiles, the key witness in the 1995 trial of George Gould and Ronald Taylor for the 1993 murder of Eugenio Vega in New Haven. O’Donnell worked as a private investigator for Gould and Taylor’s lawyers prior to their 2009 habeas trial.

There was no evidence linking Gould and Taylor to the murder — no fingerprints, DNA, hair fibers, weapon, eyewitnesses. There was only Stiles’ testimony. Stiles, a drug-addicted prostitute, testified that as she walked toward Vega’s store on Grand Avenue in the early morning of July 4, 1993, she saw a large black man cross the street heading toward the store. Hiding in an alleyway next to it, she heard voices arguing, a demand to open the safe, screams in Spanish and a gunshot, and saw two men leave the store. Later, she identified photos of Gould and Taylor as the men she saw. The men were convicted and sentenced to 80 years.

Eleven years later, O’Donnell, working as an investigator for Gould and Taylor’s habeas lawyers, tracked down Stiles in early December 2006 in a nursing home. In their first conversation, she told him she wasn’t near Vega’s store that morning, had not seen the men, and had made up the account over the course of a six-hour interrogation during which she experienced withdrawal symptoms, was threatened with arrest for prostitution, and was offered money to buy drugs. He immediately provided the state’s attorney’s office with a tape and transcription of the interview.

Five months later, while visiting Stiles, O’Donnell noticed that she and two other women were listening to a television that had no picture. He went to a Walmart and bought them a cheap television. Over the next couple of years, he would drop in on her from time to time and sometimes bring her a pizza or give her a small amount of cash.

At Gould and Taylor’s 2009 habeas hearing, Stiles reiterated what she told O’Donnell in their first meeting — that she wasn’t in the vicinity of the store that morning and made up the whole story during a six-hour interrogation in which she was threatened with being charged with prostitution, was “dope sick,” and was offered help in buying heroin. Persuaded by her recantation, Judge Stanley T. Fuger Jr. threw out the convictions and released the men.

The state appealed and in July 2011, the Connecticut Supreme Court reversed Fuger and remanded the case to the habeas court for a new trial, claiming — bizarrely — that, despite the absence of any other evidence that implicated the men, Stiles not being at the scene of the crime didn’t prove they were innocent.

Soon thereafter, Stiles was visited by two state inspectors, both former New Haven police officers. What they said is not known. They may have informed her that she would be subpoenaed to testify at the new habeas trial. They may have mentioned that in 2010 the state had removed the five-year statute of limitations for perjury, meaning she could be charged with perjury for her original trial testimony if she repeated her 2009 recantation at the new trial.

Whatever they said, her response led them to ask if she would speak with the New Haven police and to contact a New Haven detective and suggest that he speak with her. The detective did so in a videotaped interview in which Stiles attributed her 2009 recantation to O’Donnell and his offer of clothes and money and purchase of pizza, a television and a stereo. It was that videotaped statement that provided the basis for the bribery and tampering charge.

At Gould’s 2012 habeas trial — Taylor died in October 2011 — Stiles, acting upon the advice of her attorney, invoked the Fifth Amendment and refused to testify. She did so because, without immunity, whatever she said — whether she repeated the account she told at the original trial or her 2009 recantation — would have exposed her to a charge of perjury.

So at O’Donnell’s trial last fall, the state granted her immunity, thinking that if she was protected from prosecution for any previous false testimony she would repeat what she said in the July 2011 interview. Instead, she repeated her 2009 recantation, saying once again that she was not near Vega’s store that morning and did not see the men at the store.

Explaining her original testimony, she said she was a drug addict at the time, was going through withdrawal, and the officers interrogating her offered to assist her in buying drugs. “They bought drugs for me, bought me clothes. It made it easy for me to go on with the lie.” While acknowledging that O’Donnell bought her a television and gave her some money, she denied his gifts had anything to do with her recantation; when asked why she recanted, she said, “I had a chance to make right what I did wrong then.”

In convicting O’Donnell, the jury ignored Stiles’ sworn testimony and chose to believe instead what she said in the 2011 videotaped interview, despite the fact that the circumstances that prompted that interview are not known and the fact that at various points in the interview Stiles acknowledged that some of her original trial testimony was false and that some of what she said in the interview itself was false.

O’Donnell compiled an impeccable record as a police officer in Cheshire and later as an inspector in the New Haven state’s attorney’s office. He did not bribe and tamper with Stiles; her recantation occurred long before he bought her a TV and gave her pizza and small amounts of money when he visited.

In prosecuting O’Donnell on the basis of Stiles’ unreliable comments in the 2011 videotaped interview, Tolland State’s Attorney Matthew C. Gedansky abused the powers of his office. O’Donnell’s conviction was, as Judge Fuger said of Gould and Taylor’s, a “manifest injustice.” And his sentence, by Judge James T. Graham, was excessive, indeed so excessive as to be gratuitously cruel.

David R. Cameron is a professor of political science at Yale and a member of the state’s Eyewitness Identification Task Force.

Too many questionable guilty pleas

Emily Sasso is a freshman at Columbia University. Her father, Tampa lawyer Gary Sasso, represents Michael Perez in the appeal before the Florida Supreme Court. She wrote the following opinion exclusively for the Tampa Bay Times.  It was published on January 24, 2014.

In court, defendants are presumed innocent until proven guilty. But on the long journey from the back of a squad car to the dock, they are too often presumed guilty, and the legal system is heavily stacked against them before they get their day in court. That needs to change.

A case in point: high school dropout Michael Perez. Nearly 15 years ago, Miami detectives questioned the then 16-year-old Perez about the murder of Jimmy Ramirez. Perez repeatedly asked for a lawyer and to see his family, but the detectives told him that a lawyer was unnecessary and that they could not get his family. Perez says the detectives screamed at him, and he says he told them Ramirez was killed in a drive-by shooting. He said that he was innocent.

Late that night, the detectives got Perez to confess. Only then did they start to record the interrogation.

After Perez confessed and was charged with murder, he was assigned a public defender who argued that Perez was not mentally capable of making a valid confession. The teenager had frequent seizures and low brain function. The examiner concluded that Perez was mentally capable of confessing but expressed no view on whether he had been intimidated into doing so. Perez then pleaded guilty to second-degree murder and was sentenced to 40 years in prison.

Recently, another eyewitness came forward to say that Perez is innocent and that a now-deceased gang member killed Ramirez in a drive-by shooting. The new eyewitness waited to speak out until the gang member was killed because he did not want to risk his own life.

Perez is seeking to revoke his guilty plea and says the real killer told him he would kill Perez and his sister if he told the truth. A Miami trial judge rejected Perez's challenge, but a state appellate court overturned that decision and ordered that Perez should receive a full hearing on these new developments. The state has appealed this decision to the Florida Supreme Court.

The U.S. Supreme Court has established rules to protect innocent people from pleading guilty. It requires that all pleas be fair, voluntary, and taken only by a guilty defendant facing little chance of acquittal. But these criteria appear to be ineffective.

The Perez case is one of many cases where guilty pleas are entered in questionable circumstances. The Innocence Project, which helps exonerate wrongly convicted defendants, has produced two studies showing that innocent defendants are too often coerced into confessing to crimes they did not commit through overly aggressive interrogation. Of nearly 250 defendants who have been exonerated in the last 30 years, 32 percent suffered from mental disabilities, 63 percent were under the age of 26, and some, like Perez, lacked legal representation before confessing.

More disconcerting, the courts are too often accepting these problematic confessions as valid, and innocent people are being sent to prison. It is the defense counsel's job to protect defendants from this fate. But these lawyers have not witnessed the interrogations. Defendants must convince their attorney the confession was false, and the attorney must convince a court or jury that the confession was false. That can be an uphill battle.

When caught in a legal bind, the wealthy can afford to hire a defense team with substantial resources to devote to the case. With this edge, private-sector lawyers can protect them from confessing to crimes they did not commit and from accepting a plea agreement in desperation.

Indigent defendants must rely on court-appointed attorneys engaged only after the interrogation and confession. These attorneys are usually highly capable, but they often have too many cases to handle. They cannot devote the same attention to each case, and they may arrive too late to prevent overreaching by zealous law enforcement authorities.

Our justice system is not doing its job. To protect the innocent, better safeguards are needed. We need to apply the presumption of innocence from the beginning, not only at a trial. Courts should not accept dubious pleas, especially when the defendant has previously insisted on his or her innocence. Authorities should refrain from pressuring suspects to confess absent overwhelming evidence of guilt. This is especially important when the subject is young, unrepresented by a lawyer and facing serious charges like Perez did. To help ensure confessions are voluntary, all of a defendant's interactions with police interrogators should be recorded. Finally, the criminal justice system has to slow down the conveyor belt; the system needs to give each case a closer look in order to provide the protection the accused need and deserve.

Scott Lewis case shows need for Connecticut conviction integrity unit

The following opinion by David R. Cameron was published in the New Haven Register on January 11, 2014.

A number of wrongful convictions and likely wrongful convictions have come to light in the state in recent years. But perhaps none more emphatically underscores the need for a conviction integrity unit than the case of Scott Lewis.

Lewis was tried and convicted in 1995 for the murders of Ricardo Turner and Edward Lamont Fields in New Haven in the early morning of Oct. 11, 1990. He was sentenced to 120 years in prison. Stefon Morant was tried separately for the murders and sentenced to 70 years.

Now, after years of unsuccessful appeals in state courts, Federal District Judge Charles S. Haight Jr. has ruled the state committed a Brady violation by failing to disclose evidence that was favorable to Lewis and impeached the testimony of the key witness for the prosecution. He ordered that Lewis be released within 60 days unless the state declares its intention to retry him.

There was no forensic evidence linking Lewis to the crime. The weapon used in the murders never was found. He was convicted on the basis the testimony of Augustine Castro, 16 at the time of the homicides, who went by his brother’s name Ovil Ruiz. His testimony was supported by that of Jose Roque, also 16 at the time of the crime and, like Ruiz, part of a drug operation in which Lewis and Morant were involved.

Ruiz was arrested in January 1991 in connection with another shooting. After questioning by New Haven Detectives Michael Sweeney and Vincent Raucci Jr., he told Raucci he overheard Lewis and Morant discussing the possibility that Turner, a banker and supplier for drug operations, might abscond with money and drugs. He said he, Lewis and Morant drove to Turner’s residence, Lewis and Morant went in, he heard gunshots, and Lewis and Morant came running out with two bags. Several weeks later, he saw Lewis throw the gun in the Mill River.

The evidence that was suppressed came to light in Morant’s 1999 habeas trial. Sweeney testified that on several occasions during the interrogation of Ruiz he had to ask Raucci to step outside, and tell him to stop giving him facts about the homicides. After Raucci resumed the interrogation without Sweeney and later emerged to say Ruiz had given him the full account, Sweeney went in and asked Ruiz if he was telling the truth. He said no, the information had come from Raucci.

Sweeney’s testimony in Morant’s habeas trial was entered into the record in Lewis’ 2001 habeas trial. But the judge rejected Lewis’ petition, claiming that all exculpatory evidence had been furnished to the defense in the original trial and the alleged evidence that Raucci influenced Ruiz’ testimony was available through the due diligence of the defense.

Judge Haight ruled the judge was wrong: Sweeney’s testimony was exculpatory, the defense wasn’t told about his interactions with Raucci, and the information wasn’t available through due diligence. He said the state clearly violated Brady v. Maryland (1963), the U.S. Supreme Court ruling that suppression of evidence favorable to a defendant violates the constitutional right to due process.

Lewis contacted the FBI and claimed he had been “set up” for the homicides by Raucci, who, he said, was a partner of the man who headed the drug operation and to whom Lewis owed money. An FBI investigation developed information that Raucci used drugs. He was suspended, later charged with billing the city for extra-duty work he didn’t do and assaulting his former girlfriend and, after pleading no contest, was given a suspended sentence.

The FBI also interviewed Ruiz and Roque. Both said their testimony against Lewis and Morant was false. Ruiz said they didn’t do it, that he had agreed to help set them up and had met with Raucci to plan it, and that he knew who did it because he was there. He said most of the account was true except that he replaced the names of those who were with him with those of Lewis and Morant.

Roque, who, like Ruiz, now is incarcerated, said he was threatened by Raucci with arrest for the murders if he didn’t provide a statement implicating Lewis and Morant, and that Raucci provided him with the information.

The state must decide if it will release or retry Lewis. In view of Sweeney’s testimony and the statements by Ruiz and Roque to the FBI, it’s inconceivable it will retry Lewis. But it needs to do more than release him; it must examine why it has taken so long for this egregiously wrongful conviction to come to light.

Perhaps more than any other, this case underscores the need for a statewide conviction integrity unit that would examine the basis for conviction in cases in which there is suspicion of official misconduct or perjury by highly unreliable witnesses. A number of major cities — Dallas, Houston, Chicago and Cook County, Manhattan and Brooklyn in New York — have created such units over the past half-dozen years. Connecticut should do the same.

David R. Cameron is a professor of political science at Yale and a member of the state’s Eyewitness Identification Task Force.