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.



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.


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Commentary: Prosecutors need to be held accountable for wrongdoing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Friday, September 01, 2017

The emperor of junk science forensics has died

The following opinion by Radley Balko was published by the Washington Post on August 31, 2017.

According to local news reports, 66-year-old Robert O’Block died late last month in an apparent murder-suicide. It appears that O’Block shot himself after shooting and killing his 27-year-old girlfriend. It is a strange, tragic and violent end to a truly bizarre life.

O’Block was the founder and chief executive of the American College of Forensic Examiners Institute (ACFEI), which claims to be the largest forensics organization in the world. It may well be. But the group’s impressive size is as much a warning for the rest of us as it was an accomplishment for O’Block — because the rise of O’Block and the ACFEI embodies everything that’s wrong with how forensics is used in the American criminal-justice system.

The ACFEI story begins in the early 1990s. For about a decade, O’Block had been teaching criminal justice at Appalachian State University, a small liberal arts school in the Blue Ridge Mountains. But the school fired him in 1991, with college officials alleging that he falsely claimed co-authorship of several academic articles. (In a 2000 article in ABA Journal, O’Block insisted that his termination was retaliation for whistleblowing.) O’Block was subsequently hired by the criminal-justice department at the College of the Ozarks in southern Missouri.

While teaching in Missouri, O’Block took an interest in handwriting analysis, a highly subjective field of forensics that critics say hasn’t been subjected to scientific scrutiny. O’Block eventually applied for membership to an existing organization of forensic handwriting experts but was rejected. Rather than apply again, O’Block decided to form his own credentialing organization for the specialty. In 1992, he founded the American Board of Forensic Handwriting Analysts and put himself in charge. He began soliciting fees for membership and certification. According to a profile in Fraud magazine, the first “national training director” O’Block hired for his new organization was a man who had no more education than a high school diploma and who claimed he could enlarge women’s breasts through hypnosis. The breast-enlarging hypnotist would later resign, apparently because even he began to have doubts about what O’Block was doing in forensics.

And yet in spite of all of this, O’Block’s organization’s membership continued to grow. That’s because of a series of Supreme Court decisions that came down just a year after O’Block started the group. Until 1993, the admissibility of expert testimony in federal court and in nearly every state in the country was governed by a 1923 case for the U.S. Court of Appeals for the District of Columbia Circuit called Frye v. United States. In Frye, a polygraph instructor had testified that a rise in systolic blood pressure was indicative of lying. The court rejected that testimony and ruled that in order for scientific evidence to be admissible in federal court, it must have “gained general acceptance in the particular field in which it belongs.” But the most important part of the decision came almost by accident: It put judges in charge of determining what is and isn’t good science. Judges of course are trained in law, not science. Ever since, the courts have used a legal analysis to evaluate the merits of scientific evidence. The results have been disastrous.

It took another 70 years for the Supreme Court to address the issue of expert testimony. In the 1993 case Daubert v. Merrell Dow Pharmaceuticals, the plaintiffs alleged that a medication the company had marketed to pregnant women for morning sickness was causing birth defects. The Supreme Court used the case and two others to issue a sweeping series of rulings that sought to suss out the proper relationship between science and the law. In the end, the court found that the Frye “general acceptance test” risked excluding science that was not yet generally accepted by the status quo but could still be valuable in court. The justices instead instructed judges to consider a variety of other factors, such as whether an expert’s claims are testable, whether his or or her conclusions are subject to peer review, whether the methods are governed by standards and protocol, and whether a witness’ general testimony has been accepted within a particular scientific community.

But to be admitted, expert testimony needn’t meet all of these criteria. It’s left to judges to determine what weight and significance — if any — to assign each factor. Daubert opinions are scientifically suspect at best. They’re often little more than citations to other courts that have approved the evidence in question.

The immediate impact of the Daubert rulings was to create more space for expertise that had yet to be scientifically scrutinized (though it wasn’t all that difficult for such experts to testify before the ruling). But as with Frye, one of the decision’s most important effects was essentially an afterthought: It put the Supreme Court’s imprimatur on making judges the “gatekeepers” of expert testimony. Daubert is now the law in federal court and in all but nine states.

 Asking judges to separate good science from bad has been as flawed in practice as it sounds in theory. Judges began to look for shortcuts, one of which was to rely on professional organizations and certification in considering Daubert challenges. The market responded, and soon the forensics field was awash in acronyms as certifying organizations sprang up to meet the demand. For O’Block, the timing couldn’t have been more fortuitous.

Within just a few years, O’Block expanded his new group to include other emerging fields of forensics. Administrators at the College of the Ozarks later told Fraud magazine that the school terminated O’Block when officials discovered he was using his students to collect fees, stuff envelopes and send out promotional materials for the new certifications on offer.

But by that point, O’Block no longer needed to teach. In 1995, he renamed his organization the American College of Forensic Examiners. He would later add the word “institute” after objections from a group already using the ACFE acronym. (That group is the Association of Certified Fraud Examiners, which publishes Fraud magazine.) As his organization grew, O’Block formed a board of directors, consisting of him, his then-wife and his two minor children. He paid himself a salary just over $50,000 per year. And he started a hotline to hook his members up with lawyers in need of expert witnesses — 1-800-4AExpert.

ABA Journal reported that by 2000, the ACFEI offered “boards” in 11 specialties. It claimed more than 13,000 members and 17,000 diplomates (if you were a member, you could be a “diplomate” in more than one field). Revenue for the group topped $2 million that year, and O’Block’s salary rose to $200,000 per year. According to tax records obtained by the Springfield (Mo.) News-Leader, O’Block earned more than $400,000 from the ACFEI and related organizations in 2010 and 2011.
Today, the ACFEI claims to be the largest forensic certification organization in the country. It probably is. It boasts celebrity forensic spokespersons, like the famed medical examiner Cyril Wecht and the forensic analyst Henry Lee, who worked on the O.J. Simpson, JonBenet Ramsey and Laci Peterson cases. It features certification in areas such as “forensic professional technologist.”  The “survival mindset” certification is taught by Dave Grossman. Regular readers of The Watch will recognize Grossman as the man behind controversial police training seminars such as “The Bulletproof Warrior.”

The group has several sub-specialty fields with names that sound suspiciously similar to existing, more reputable organizations. For example, it features a number of “advisory boards” that use the term “American Board” (the American Board of Forensic Medicine, American Board of Psychological Specialties, and so on). That same term is also used by more credible and widely accepted medical boards such as the American Board of Medical Specialties, the American Board of Pathology, and so on. There is a world of difference between a medical examiner telling a judge that he or she is certified by the American Board of Pathology vs. the American Board of Forensic Medicine. But both sound pretty official, and both sound like the sort of group that might certify medical examiners. Judges, prosecutors and defense attorneys often don’t take the time to learn the difference.

One of the main criticisms of the ACFEI over the years is that the group seems to spend far more time and energy collecting fees from its members than it does verifying the expertise of the people it certifies. In fact, many members over the years have simply been grandfathered into certification or some other form of accreditation. They needed only to send a check and a résumé.

The Wall Street Journal reported in 1999 that ACFEI candidates who weren’t grandfathered in had to score 75 percent or higher on an ethics test. But the test was largely symbolic. It included questions such as “Is it ever okay to misrepresent yourself?” and “Is it ever okay to stretch the truth?” Failing applicants could retake the test up to three times. The test requirement could also be waived entirely if a candidate’s application accumulated 100 “points.” A published article was worth 10 points. Attending a “scientific meeting” was worth 5. A bachelor’s degree alone was worth 30. Points weren’t determined by the ACFEI, but by applicants themselves, using the honor system. And even that could be waived. “Dr. O’Block himself ultimately determines who gets a credential, based on his review of an applicant’s background,” the Wall Street Journal reported.

ABA Journal interviewed one psychiatry professor at Washington University in St. Louis who received ACFEI certification without trying. He had applied for certification after seeing an ad in the back of a medical journal. When he received the ethics test (which could be returned by mail), he said, “The questions were so trivial, I didn’t even bother to fill it out.” To his surprise, the ACFEI sent him his certification anyway, followed by solicitations for higher levels of certification — all for an additional fee, of course.

Similar stories abound. Former prison inmate Seymour Schlager was able to obtain a certification from the ACFEI’s “American Board of Forensic Medicine” while serving time for attempted murder. In 2002, one woman was able to get certification for her cat. O’Block took exception to that report. “First of all, ACFEI did not certify a cat,” he said. The group “certified a human being who used fraudulent credentials and called himself Dr. Katz.”

But that was sort of the point. The ACFEI never bothered to verify any of those credentials. And those credentials are what allowed the fictional feline to skip the take-home exam. ACFEI employees interviewed by ABA Journal reported that the ethics tests were often written by low-level staffers with little to no experience in the fields for which they had been assigned.

Despite the bad publicity, the ACFEI continued to grow throughout the 2000s. After the 9/11 terrorist attacks, the group began offering a certification in “Homeland Security.” After paying $500 and passing an ethics test, the group will grant something called Level I CHS (Certified in Homeland Security). For an additional $500, you can move up to Level II. A 2007 ad in Forensic Examiner, the ACFEI’s official publication, offered Homeland Certification up to Level V. (The program has proved lucrative. As of 2014 the U.S. Navy had paid the ACFEI more than $12 million to certify sailors through the organization.)

In 2004, O’Block created a company to oversee his other ventures, including the ACFEI. In 2011, he changed the name of that company to the Center for National Threat Assessment.

Oddly, the ACFEI hasn’t always been forthcoming about whom it certifies. Back in 2007, I contacted the organization to inquire about the controversial Mississippi medical examiner Steven Hayne. For years, Hayne had claimed in court to be “board-certified” in forensic pathology, despite the fact that he failed the certification exam given by the American Board of Pathology, generally recognized as the only legitimate certifying body for medical examiners. To my surprise, the group told me that it doesn’t release the names of the experts it has certified. That seems to defeat the entire purpose of certification. If the group won’t verify whom it has and hasn’t certified, anyone could claim to be certified. There’s no way to check.

In a subsequent article for Reason magazine, I noted that many former members and forensic specialists had criticized the ACFEI as a “certification mill.” (Hayne, like many other ACFEI diplomates, was grandfathered in for his certification. He had to provide only a résumé and pay a $350 fee.) That description prompted a letter to the editor from the group’s “certifications officer,” as well as a series of emails from the editor of the group’s Forensic Examiner magazine. The letter to the editor included vaguely threatening legal language calling my description of the ACFEI “false and disparaging” and “recklessly false and damaging” and warned that I could face “personal liability” for quoting other articles critical of the ACFEI. (O’Block and the ACFEI group have filed at least two defamation lawsuits against critics of the organization. Neither was successful.)

Despite ACFEI officials’ protestations that the group was not a “certification mill,” four years later a journalism grad student named Leah Bartos was able to get certified as a “forensic consultant,” despite having no prior experience in forensics. In an article for ProPublica and “Frontline,” Bartos wrote that to get the certification, she only had to watch a 90-minute video and pass a 100-question online test (with the assistance of the “study packets” the ACFEI had sent her). She also had to pay $495, plus an additional $165 in ACFEI membership dues. (For an additional $50, the ACFEI offered to send her a white lab coat.) In their correspondence with me, both ACFEI representatives claimed that candidates for the group’s various levels of credentials are extensively vetted. According to Bartos, no one from the ACFEI ever contacted any of her professional references.

When asked whether they’re worried that their certification programs are enabling unqualified “experts” to testify in court, ACFEI spokespersons will often say the group has never claimed that certification is meant to qualify a candidate as a witness. But ACFEI publications and promotional materials tell a different story. The descriptions of the group’s various programs advertise how important credentials are to establish credibility as an expert witness. For example, here’s copy from the page for the “Certified Forensic Physician” program:
Forensic Physicians hold an integral role in determining the outcome of many important court cases. Often in extreme cases of assault, murder, or rape, a Physician can unlock the information to put an assailant in jail, or to exonerate the innocent.
Here’s copy from the page for “Certified Medical Investigator”:
Medical investigators are often asked to do many different things. Sometimes they must analyze a crime scene for trace evidence; other times they must review a victim-dead or alive-for signs of violence, yet other times they must analyze DNA or other evidence, to convict the guilty or exonerate the wrongly accused.
Promotional materials also often include photos of courtrooms, gavels and other symbols of the legal system.

Of course, even properly credentialed experts can still give testimony that’s not credible. But proper credentials at least establish a baseline. They’re the minimum qualification to be certified as an expert witness. As Michigan circuit court judge Donald Shelton put it in Bartos’s 2012 ProPublica report, “Credentials are often appealing shortcuts,” adding that “jurors have no way of knowing that this certifying body, whether it’s this one or any other one, exacts scientific standards or is just a diploma mill.⁠” This is the confusion upon which O’Block built a credentialing empire.

Earlier this month, the ACFEI announced on its website that it had indefinitely suspended its operations in the wake of O’Block’s death. The group did not return an email requesting comment, but that notice has since been removed.

The News-Leader profile of O’Block describes him as a controlling, often abusive boss. He was married four times and was once sued for alleged sexual harassment (he settled). That lawsuit accused the ACFEI of paying for the “non-business expenses of O’Block and members of his family, girlfriends and employees.” According to the article, in his autobiography, O’Block dismisses criticism of his organization as little more than envy, writing, “If there is one thing that the history of mankind teaches, it is that success breeds contempt. No one who has ever reached the pinnacle of success has avoided wandering through the valley of the critics.” According to O’Block’s Facebook account, he was a vocal supporter of Donald Trump. That makes some sense. One of the first policies of the Trump Justice Department was to end its partnership with the National Commission on Forensic Science, a group whose aim was to bring scientific scrutiny to forensics.

In his autobiography, O’Block compares himself to Thomas Edison, Henry Ford and Alexander Graham Bell. There’s no question that O’Block built an enormous organization, one that proved quite lucrative for him. But Edison and Bell were men of science. Ford, for all his flaws, was an innovator who improved the lives of millions. O’Block made his fortune helping others exploit a fatal flaw in the criminal-justice system. Some of the people O’Block has credentialed are no doubt genuine experts, but they didn’t need O’Block’s credentials in the first place. The people who need the credentials are those who can’t get credentialed by a more reputable organization, or who specialize in fields for which more reputable organizations don’t exist. Many of those people then put O’Block’s dubious credentials to work, whether by testifying in court, aiding in police investigations or giving professional advice they weren’t qualified to give.

O’Block had delusions of grandeur, but he could certainly say at his death what few others can: He changed the world. He made expertise less reliable, certification less reputable and the courts less just. He left the world a less honest, less reliable, less trustworthy place. But if it hadn’t been O’Block, it would have been someone else. Until we fix the flaws in our justice system that allowed him to flourish, another Robert O’Block will inevitably step up to take his place.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."

Friday, August 11, 2017

Criminal justice reform starts with the prosecutor

The following article by Fred Patrick and Meg Reiss was published by The Hill on August 10, 2017.

Respect. Self-worth. Hope. Proportionality. These were one-word visions for a reimagined criminal justice system from group of people who have considerable power to make change a reality: prosecutors.

This summer 24 prosecutors from around the country and across the political divide came together in New York to discuss the criminal justice system and prosecutors’ role in it. Their aim was not to gain more resources to maximize convictions or felony charges, but rather to find ways to recognize the needs and the dignity of the communities they serve — including victims, witnesses and defendants — and to build a criminal justice system that better enhances safety and ensures fairness.

This kind of convening — organized by the Vera Institute of Justice’s Reimagining Prison initiative and The Institute for Innovation in Prosecution at John Jay College of Criminal Justice (IIP) — was remarkable because prosecutors are some of the most powerful players in the criminal justice system. They wield wide discretion, including over what charges to bring and whether to enter a plea negotiation.

 Traditionally, prosecutors are seen as measuring success in terms of convictions, plea bargains or the amount of punishment exacted. But prosecutors are rethinking their role in the criminal justice system. In a time where the future of criminal justice reform at the federal level is uncertain, justice delivery at the local level is even more important, and this shift represents a powerful sea change in thinking.

The prosecutors attending represented jurisdictions ranging from rural West Virginia, to suburban Alabama, to the nation’s largest coastal cities. Some have been in office for as long as 35 years, while others were elected last fall as part of a wave of reform-minded prosecutors.

Despite the geographic and political diversity, some common themes emerged throughout the meeting. For one, everyone agreed that rehabilitation — which is not currently delivered through incarceration — is a key determinant of public safety. The prosecutors also unanimously agreed on the need for front-end reform: preventing people from being behind bars by implementing alternatives to incarceration, and making sure that other systems, such as education, provide more opportunity to keep people from the criminal justice system entirely.

And what about after prosecution? The prosecutors were in widespread agreement that there’s currently a disconnect between them and other criminal justice system players. “If we want to see lower rates of re-offense, we need to care about what is happening to people while they are in prison,” one prosecutor told us, who argued for communicating more with departments of corrections. Another said that after realizing that the vast majority of his assistant district attorneys — the people in his office responsible for actually trying cases — had never been inside a prison, he had them go see one in person.

And although more than 95 percent of cases result in a plea bargain and don’t go to trial, some prosecutors articulated that sentencing was not under their control, and that those decisions are subject to state laws and judges. However, others argued that prosecutors yield great power through sentencing recommendation and plea bargains; one prosecutor noted that “from the public’s view, we — and we alone — are the sole actor who sends people to jail and prison.”  

In considering how prosecutors contribute to incarceration, the group participated in a discussion about what a reimagined prison system could look like. Prosecutors considered hypothetical cases and gave a wide variety of sanctions that they would recommend for each case, ranging from one to 15 years of prison time, to diversion and probation.

The diversity of sanctions presented by the group on these cases may make it seem like the criminal justice system is arbitrary, hyper-localized and far from what a reimagined system could look like. After all, there are more than 3,000 local counties, each with their own justice system. However, on that day, we also heard consensus about the need for reform from a broad range of prosecutors. And in the variety of responses, we also saw a range of options for moving past heavy-handed sentences that have helped create mass incarceration.

One of the clearest things we heard from prosecutors was that many want to think about things differently, but they think they are alone. They’re not. Our organizations — The Institute for Innovation in Prosecution at John Jay College of Criminal Justice (IIP) and the Vera Institute of Justice — are partnering with prosecutors from across the country to consider how they can rethink their roles and responsibilities to help create a more effective and equitable criminal justice system.
At the meeting, 24 prosecutors asked hard questions of themselves and each other, and considered how to use their power for public safety rather than solely for punishment. Critical to this shift is recognizing the humanity of each person in front of them and embracing a restorative approach to public safety and the administration of justice.


Fred Patrick is the director of Sentencing and Corrections at the Vera Institute of Justice. Patrick previously served as New York City Deputy Commissioner for Planning and Programs at the NYC Department of Correction, Commissioner of the NYC Juvenile Justice Department and NYPD Deputy Commissioner for Community Affairs. He also served as a faculty member at John Jay College of Criminal Justice.

Meg Reiss is the executive director for the Institute for Innovation in Prosecution at John Jay College of Criminal Justice. Reiss has more than 20 years of legal and criminal justice policy experience, including as an assistant district attorney in the Brooklyn District Attorney’s Office, supervising compliance at the Los Angeles Police Department, and has served as the chief of staff of the Nassau County District Attorney’s Office.

Friday, August 04, 2017

I Just Walked Free after 22 Years in Prison for a Crime I Didn’t Commit. I Still Want Justice.

The following contribution by Lorenzo Johnson was published by HuffPost on August 3, 2017.

After twenty-two years of fighting my wrongful conviction, I’m finally free from a “natural life” sentence. In Pennsylvania, a life sentence is called “the other death penalty.” Why? Your sentence is only considered served when you no longer have air in your lungs...

I have one of the rare cases that got national attention because my conviction was vacated on October 4, 2011 by the Third Circuit Court of Appeals on the grounds of insufficient evidence, which is equivalent to a “not guilty” verdict and bars retrial. Still, the prosecution fought me tooth and nail until the judge ordered my release on January 12, 2012, pending the prosecution’s last appeal to the US Supreme Court.

I quickly returned to my home state of New York. where I rejoined my family structure after being gone for sixteen and a half years. I began working, speaking at colleges and wrongful conviction events, and I met my wife. But my freedom was short lived. After a mere 148 days, the US Supreme Court reinstated my conviction in a per curiam decision and ordered me back to prison. My defense was not allowed to file briefs or make oral arguments for our position (normal procedures). I returned to prison on June 14, 2012, ready to keep fighting and clear my name once and for all.

A short time after my return to prison, my defense unearthed a treasure trove of new evidence proving my innocence in a grave case of prosecution misconduct. The prosecution in my case knew I was innocent from day one but withheld this information for eighteen and a half years. Instead of finally doing what was right, they accused me of not filing my appeal sooner. In other words, “SO WHAT” if they never turned this evidence over like they were supposed to?

After almost four years of delays and stall tactics, a judge gave me an evidentiary hearing on my claims of prosecution misconduct. I was about to finally have my day in court with overwhelming amount of evidence of my innocence that was supposed to be furnished to my defense prior to trial.

For innocent prisoners, we can have evidence of our innocence and still be denied justice. Why? If your appeal is filed one day late, you’re “time barred” and will automatically lose your claim despite being able to show your innocence. Then there’s the uncertainty as to whether the judge will rule in your favor even though you can prove your innocence.
My confidence has truly been lost in our criminal justice system after experiencing everything from strict guidelines that hurt the innocent to crooked agents of the court. In my situation, my faith has almost been shattered in the criminal justice system. Due to this, and to our fears about what might go wrong next, my defense agreed to a plea agreement to secure my instant release.

After twenty-two years of not just my own suffering, but my family’s as well, I made the bittersweet decision to end their pain and regain my freedom. I entered a plea of “no contest” to lesser charges. No innocent prisoner deserves anything less than a full exoneration. This is my second release from a natural life sentence—that tells you there was something extremely wrong with my conviction.

* * *
Lorenzo Johnson spent almost twenty-two years incarcerated for a crime he didn’t commit. Wrongfully convicted of a 1995 murder in Harrisburg, Pennsylvania, he won release from his life-without-parole sentence in 2012, after the Third Circuit Federal Court of Appeals ruled there was legally insufficient evidence for his conviction. He remained free for four months, after which the US Supreme Court unanimously reinstated the conviction and ordered him back to prison to resume the sentence. With the support of The Pennsylvania Innocence Project, he continued to fight for his freedom. On July 11, 2017, he was re-sentenced and released from prison. He now lives in his hometown of Yonkers, New York, with his wife, Tazza. You can reach him at: For more information, visit