Tuesday, March 20, 2018

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

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

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

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

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

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

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

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

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

Some of the major takeaways:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, February 06, 2018

What Criminal Justice Can Learn From Its Bad Outcomes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Tuesday, January 23, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Albany lawmakers should see Cuomo and raise him one.

Sunday, January 14, 2018

When Prosecutors are "Innocence Deniers"

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

TRANSCRIPT:

SCOTT SIMON, HOST:

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

Thanks so much for being with us.

LARA BAZELON: Thank you for having me.

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

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

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

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

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

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

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

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

So how do you respond to that?

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

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

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

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

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

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

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

BAZELON: Thank you so much for having me.

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

Copyright © 2018 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

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.

Commentary: Prosecutors need to be held accountable for wrongdoing

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Sunday, October 01, 2017

Rethink death penalty in light of widespread government misconduct

The following guest commentary by James Castle and Jonathan Repucci was published by the Denver Post on September 29, 2017.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

James Castle and Jonathan Reppucci are Denver lawyers appointed by the court to represent Sir Mario Owens.

Thursday, September 21, 2017

Let’s Keep the Science in Forensic Science

The following article by Sunita Sah and others* was published by Scientific American, October, 2017 issue.

A body created to set national standards is now in danger

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.

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.

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.

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.

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.

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.”
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.

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.

*Arturo Casadevall, Johns Hopkins Bloomberg School of Public Health; Suzanne Bell, West Virginia University; S. James Gates, Jr., University of Maryland; Thomas D. Albright, Salk Institute for Biological Studies; M. Bonner Denton, University of Arizona.

A Tennessee man could remain in prison for years, even though a judge and prosecutor have dismissed the charges against him

The following opinion by Radley Balko was published by the Washington Post on September 20, 2017.

From the Tennessean, 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.

    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.

    The man will remain in prison until next year at least — maybe until 2026 …

    … 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.

    “I was drinking and drugging and it cost me my life,” he said. “I threw it away in 30 minutes.”

    He was released on parole in October 2013, according to state records.

    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.

    Because of his criminal history, Smith wasn’t supposed to have guns.

    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.

    Officers later found a handgun in furniture in Smith’s bedroom and three rifles and a shotgun in a separate closet, records say.

    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.

    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.

    “Your case is dismissed,” a judge told Smith, according to the transcript. “That’s the end of that, so, for you.”

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.

This isn’t the first time the Tennessee Board of Parole has come under criticism. Here’s an op-ed, also in the Tennessean, from May:


    In 1978, Lawrence McKinney was sentenced to 100 years in prison for crimes he didn’t commit.

    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.

    He was released after serving 31 years and given $75.

    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.

    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.

    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.

    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.

    “[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.

    What’s more, arguably this kind of alternative reality seems to be par for the course for the leadership of the Board of Parole.

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.

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.

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. Both are best known for being related to prominent state Republicans. One, Zane Duncan, 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.).

The makeup of the rest of the board 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. She worked for more than 20 years in special education and has won community service awards in West Tennessee. She was also an outspoken supporter of Haslam during his campaign.

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. According to the board’s annual report 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 …
  • “Planned the 13th annual Tennessee Season to Remember event honoring homicide victims, in cooperation with other state criminal justice agencies.”
  • “Honored 12 members of the [Board of Parole] staff with awards for reaching milestones in state service.”
  • “Planted eleven trees in cities across the state to honor victims of crime, and honored victim advocates for their work.”
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.

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.

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.

Monday, September 04, 2017

Why do prosecutors go after innocent people?

The following opinion by John Pfaff was published by the Washington Post on September 3, 2017.

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.”

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.

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.

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.

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.

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.

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.

So who applies this pressure?

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.

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.

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.)

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.

***
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.