Monday, February 15, 2016

The greatest injustice

Editorial published by the Toledo Blade on February 14, 2016.

Ohio state prisons probably hold hundreds of innocent people. Most of them will never get justice.

Nothing so violates the sanctity of the law as condemning the innocent. In the few cases where such travesties are exposed, the state should acknowledge and learn from its errors, and act quickly to redress them.

That’s not how it goes in Ohio, which has erected onerous legal hurdles to compensating the wrongfully convicted. State lawmakers should remove these excessive and oppressive barriers to justice and allow the wrongfully convicted to take their cases directly to Ohio’s Court of Claims.

To its credit, Ohio is one of 30 states that compensate wrongfully convicted prisoners, who can claim damages of roughly $50,000 for each year in prison. (Texas pays $80,000 a year.) The Court of Claims calculates the amount of judgments, based on time served, lost wages, and legal fees.

Convictions and exonerations

But before those with wrongful convictions may file with the Court of Claims, they must file suit in local courts to affirm that they were wrongfully imprisoned. If prosecutors object, getting such an order is difficult, if not impossible.

In some cases, people with rightful claims might never file with a local court. In others,  procedure eclipses justice. The National Registry of Exonerations, run by the University of Michigan Law School, lists 63 wrongful convictions in Ohio since 1989. During that period, the Ohio Court of Claims awarded only 40 judgments, ranging from $11,069 to $2.5 million.

The state has, in effect, legitimized the noxious notion that people who have been wrongly declared guilty, and suffered the consequences, must also prove their innocence to get redress.

Case of Danny Brown

Toledo’s Danny Brown, now 60, is a case in point. His wrongful conviction and nearly 20 years in prison should entitle him to more than $1 million from Ohio’s Court of Claims. But nearly 15 years after his release, he still has not received compensation or a local court order affirming his wrongful imprisonment.

In 1982, a Lucas County jury convicted Mr. Brown, who was represented by a court-appointed attorney, of the brutal murder of Bobbie Russell. In December, 1981, she was hit in the head, raped, and fatally strangled with an extension cord in her east-side Toledo home. Ms. Russell’s son, Jeffrey, then 6, the sole eyewitness, identified Mr. Brown as the man who entered his mother’s home the night she was raped and murdered.

In 2001, prosecutors dismissed the charges against Mr. Brown, after a DNA test identified semen from the crime scene as Sherman Preston’s. Preston, now 64 and serving a life sentence at Marion Correctional Institution, has been in prison since March, 2000, for another, strikingly similar 1983 murder. He declined to talk to The Blade’s editorial page last week.

Mr. Brown also took a lie detector test and passed. In 2002, he filed suit in Lucas County Common Pleas Court, asking the court to affirm that he had been wrongfully imprisoned. He lost his suit, after the Lucas County Prosecutor’s Office maintained, based largely on Jeffrey Russell’s unchanging testimony, that Mr. Brown remained a suspect. In 2006, Ohio’s 6th District Court of Appeals upheld the suit’s dismissal in a 2-1 ruling.

Lucas County Prosecutor Julia Bates, who took office in 1996,  told The Blade’s editorial page that she has no immediate plans to retry Mr. Brown. She now has a reasonable doubt about his guilt. But she also believes that Preston and Mr. Brown could have both participated in Ms. Russell's murder. Mr. Brown said he doesn't know Preston.

“There are a lot of unanswered questions,” Ms. Bates said this month. “If he didn’t do it, I’m sorry.”

That’s little consolation to Mr. Brown, who is sick, broke, and living in a Toledo homeless shelter, as the column on the next page by The Blade’s deputy editorial page editor, Jeff Gerritt, shows. Mr. Brown can’t prove he didn’t kill Ms. Russell, but neither could anyone who doesn’t have an airtight alibi for the night of Dec. 5, 1981.

Mr. Brown’s attorney, Patrick Quinn of Columbus, has filed another suit on Mr. Brown’s behalf in Lucas County Common Pleas Court. Justice now rests with Judge Gene Zmuda, who has yet to rule on the latest suit.

“I just want my name cleared,” Mr. Brown told The Blade’s editorial page last week.

Learning from mistakes

Wrongful convictions violate the most sacred tenets of the U.S. criminal-justice and legal system, including the presumption of innocence and a standard of guilt beyond a reasonable doubt. Those protections against tyranny underscore that punishing the innocent is more egregious than not punishing the guilty.

Since 1989, DNA technology has exonerated at least 337 people in this country. But DNA evidence — blood, semen, saliva — is available in only a scintilla of criminal cases.

Not all wrongful convictions are clear-cut DNA cases. Dedicated advocacy groups such as the Ohio Innocence Project at the University of Cincinnati have reversed convictions by discovering other compelling new evidence of perjury, false accusations, police misconduct, faulty eyewitness identification, unreliable informants, or a woefully inadequate defense.

The National Registry of Exonerations lists 1,738 wrongful convictions since 1989. Sadly, many innocent  men and women will never make that list. Extrapolating from error rates in DNA cases, researchers estimate that between 1 and 5 percent of all U.S prisoners are innocent of the crime they were convicted of.

An error rate of 1 or 2 percent makes an excellent score on a high school history exam — but it’s horrifying for a criminal justice system that sends people to prison and even to their death. A 2 percent error rate would mean nearly 50,000 U.S. prisoners, including 1,000 in Ohio, are innocent.

The office of Ohio’s attorney general, or an independent commission of the General Assembly, should examine and dissect every wrongful conviction in the state and determine what went wrong. The registry should also prescribe changes to prevent similar mistakes, such as requiring police to videotape all interrogations and improving the state’s public defense system.

Reducing wrongful convictions would have economic benefits as well as costs: Incarcerating an innocent person costs states between $25,000 and $40,000 a year.

But wrongful convictions are far more than economic liabilities or collateral damage in the war on crime. Raising the profile of wrongful convictions, learning from their mistakes, and compensating their victims in an expeditious manner are moral imperatives to redress the state’s greatest injustice.

Sunday, February 14, 2016

Prisoners Exonerated, Prosecutors Exposed

February 12, 2016, by the Editorial Board of the New York Times

In 2015, 149 people convicted of crimes large and small — from capital murder to burglary — were exonerated. It is the highest yearly total since this grim form of record-keeping began, in 1989.

In that time, there have been at least 1,733 exonerations across the country, and the pace keeps picking up. On average, about three convicted people are now exonerated of their crimes every week, according to the annual report of the National Registry of Exonerations. The registry defines an exoneration as a case in which someone convicted of a crime is cleared of all charges based on new evidence of innocence.

The individual cost to those wrongly convicted is steep: Last year’s group spent an average of more than 14 years behind bars. Five had been sentenced to death. Amazingly, half of the exonerations involved cases in which no crime occurred at all — for example, a conviction of murder by arson that later turned out to be based on faulty fire science.

Equally eye-opening is the list of reasons behind these miscarriages of justice. For instance, 27 of last year’s exonerations were for convictions based on a false confession. This happened most often in homicide cases in which the defendant was a juvenile, intellectually disabled, mentally ill or some combination of the three. In nearly half of all 2015 exonerations, the defendant pleaded guilty before trial.

These numbers are a bracing reminder that admissions of guilt are unreliable far more often than is generally believed. Some defendants, especially the young or mentally impaired, can be pushed to admit guilt when they are innocent. Some with prior criminal records may not be able to afford bail but don’t want to spend months in pretrial detention or risk a much longer sentence if they choose to go to trial.

Official misconduct — including perjury, withholding of exculpatory evidence and coercive interrogation practices — occurred in three of every four exonerations involving homicide, and it was an important factor in many other cases as well.

As high as these exoneration numbers are, they still understate the scope of the problem, since not all cases involving misconduct come to light.

The good news is that Americans are starting to grasp the depth of the problem. The Innocence Project, now more than 20 years old, has shown again and again how many ways a conviction can be obtained wrongfully. And in-depth investigations of questionable murder convictions by popular shows like “Serial” and “Making a Murderer” have led to calls for greater prosecutorial accountability.

As technologies like DNA testing have become more widely used, some prosecutors’ offices have begun to take responsibility for correcting their own errors. In the last seven years, almost two dozen offices in 11 states and the District of Columbia have opened conviction-integrity units to re-examine old cases. But the units vary widely in effectiveness. Half have never exonerated anyone, while two, in Brooklyn and in Harris County, Tex., were responsible for one-third of last year’s exonerations.

It is good to see any degree of self-reflection and accountability from prosecutors, who wield enormous and often unreviewed power in the criminal justice system. It would be even better for them to put in place safeguards that would prevent wrongful convictions in the first place.

Friday, February 05, 2016

Court Martial vs. Jury Trial – What's the Difference, and Does it Matter?

by Dennis Chapman, Attorney at Law
February 3, 2016

Superficially, the Courts Martial that try Service men and women accused of crimes look a lot like the trials where civilian defendants get their day in court. But while outwardly similar, Courts Martial differ from civilian trials in substantial and important ways. These differences are often to the disadvantage of the Soldier, Sailor, Airman or Marine accused of a crime. Because of this, it is all the more importantthat a Service Member accused of a crime mount an aggressive and effective defense from the outset of the investigation.

Probably the most important difference between a Court Martial and a civilian Court is the finder of fact. In civilian trials, guilt or innocence is determined by a jury – an impartial group of men and women, unconnected with the prosecution, the defense, or the court itself, chosen from among the community at large. In most States a jury consists of 12 jurors and must reach a unanimous decision as to whether the accused is guilty or innocent. In a Court Martial, the finder of fact is a Panel of Service Members of equal or greater rank than the accused. Federal Courts have held that a Court Martial Panel is not a jury, and for good reason. Unlike most civilian juries, General Court Martial Panels can be as small as five members. More significantly, unlike most juries, these Panels are not required to reach unanimous verdicts, but decide on a two-thirds majority vote (except for capital cases). These differences may have extremely important practical effects. Research has shown that smaller juries are more likely than larger ones to produce an erroneous verdict. Likewise, the same research has shown that juries allowed to reach verdicts by majority vote are also more prone to reaching erroneous verdicts, because a majority faction can, in effect, lock out the minority and reach a verdict without deliberating, or at least without deliberating adequately. These problems mean that an innocent defendant in a Court Martial may face a greater danger of being wrongly convicted than a defendant in a civilian court.

Another difference between Jury trials and trials by a military court is the composition of the panel. Juries are composed of private citizens called from the community at large, who may be expected to come from a wide variety of backgrounds. By contrast, a Court Martial Panel is drawn from a much more homogenous population – personnel of the same Armed Service as, and of equal or greater rank than, the defendant. Unlike a jury, where the members have no connection with the judiciary or the prosecution, the members of a Court Martial Panel are all military professionals likely to strongly identify with their Service and command – in other words, with the very authority that is prosecuting the defendant. This sense of identification may consciously or unconsciously prejudice them against the accused.

While a vigorous and active defense is vital for anyone accused of a crime, the peculiarities of Courts Martial make an effective defense all the more important for Service Members so accused.

Effective February 16th, 2016, I will be joining SRIS Law Group in an Of Counsel capacity. The attorneys at SRIS Law Group care deeply about the men and women who have sworn to uphold our Constitution and defend our Republic. If you are a Service Member facing Court Martial, let us defend you.

If you need help with an issue related to the UCMJ, do not hesitate to contact us. We understand that in a lot of instances, the UCMJ can have a significant impact on your life and how your career is a vital part of your life. Take any alleged violation of the UCMJ seriously and contact us for help. We have the support and help you need.

We have client meeting locations in Virginia & Maryland. If you need a military attorney in Virginia or Maryland, do not hesitate to contact us. Our firm will defend you not only in Virginia and Maryland, but throughout the US and the world if necessary.