“People think they’re free in this country, Don’t kid yourself. This is a police state. The government can pretty much do whatever it wants.”
- Dr. Steven J. Hatfill
the Bill of Rights was added to the U.S. Constitution, its authors
clearly intended to protect the rights of persons accused of
crime. Those simply stated protections have been continuously
eroded over the past 200 years. For each interpretive appellate
decision that attempts to even the playing field, there are five more
that steepen the grade. Our concern has turned from seeking truth
to seeking convictions, and our post-conviction efforts are focused on
denying any further review.
The Fourth EstateThe term "Fourth Estate" refers to the press. Novelist Jeffrey Archer in his work The Fourth Estate made the observation: "In May 1789, Louis XVI summoned to Versailles a full meeting of the 'Estates General'. The First Estate consisted of three hundred clergy. The Second Estate, three hundred nobles. The Third Estate, six hundred commoners. Some years later, after the French Revolution, Edmund Burke, looking up at the Press Gallery of the House of Commons, said, 'Yonder sits the Fourth Estate, and they are more important than them all.'"
We agree. The press are our eyes and ears, our consciences, compassion and common sense. And we agree with journalist Steve Weinberg that better journalism about crime and punishment is a simple prescription for reducing wrongful convictions. Innocent Until Reported Guilty.
Newsroom Cuts are Blow to Death Penalty Opponents. Opponents of the death penalty looking to exonerate wrongly accused prisoners say their efforts have been hobbled by the dwindling size of America’s newsrooms, and particularly the disappearance of investigative reporting at many regional papers. In the past, lawyers opposed to the death penalty often provided the broad outlines of cases to reporters, who then pursued witnesses and unearthed evidence. Now, the lawyers complain, they have to do more of the work themselves and that means it often doesn’t get done. They say many fewer cases are being pursued by journalists, after a spate of exonerations several years ago based on the work of reporters.
City of Columbus, Ohio halts post-appeal release of records. Truth in Justice Board Member Martin Yant tells us: Here's another example of how police are trying to keep people from investigating wrongful convictions. In three of my exoneration cases, the courts overturned the convictions specifically because of undisclosed documents I obtained with public-records requests. Public-records requests provided good leads in most of my other cases, including the Clarence Elkins case. (Melinda Elkins volunteered to write a letter to the editor to point this out.) A recently filed new-trial motion based on an undisclosed exculpatory document A recently filed new-trial motion based on an undisclosed exculpatory document I obtained through a records request apparently is what spurred the prosecutor to shut off the police department's records. I went to the Columbus Dispatch after our supposedly liberal mayor didn't respond to the letter I sent him. I'm glad I did. The story has generated support, including from the founder of blockparole.com, who has used records requests to get information that he used to stop inmates he felt didn't deserve parole. He says this policy will put his group out of business. Also as a result of this story, the attorney I asked to file a writ of mandamus is reconsidering my request. Newspapers still have a powerful role in our digital world.
The Wrong Man. In the fall of 2001, a nation reeling from the horror of 9/11 was rocked by a series of deadly anthrax attacks. As the pressure to find a culprit mounted, the FBI, abetted by the media, found one. The wrong one. This is the story of how federal authorities blew the biggest anti-terror investigation of the past decade—and nearly destroyed an innocent man. Here, for the first time, the falsely accused, Dr. Steven J. Hatfill, speaks out about his ordeal.
When "Mob Journalism" helps convict the innocent. It's the ugly side of the coin. It happens when local reporters and editors willingly suspend their news judgment or succumb to community pressure to take the prosecution’s side. David J. Krajiceka co-founder of Criminal Justice Journalists, examines three cases that offer critical lessons for journalists—and the public—of the perils of “mob journalism” and media tunnel vision.
Link - Bulletpath: A Blog About Criminal Justice and the Media
Link - Bar None: Convicted Attorneys in Wisconsin Still Practice Law
Note: We add links to updates with the original news articles reporting how the system really works, so be sure to scroll down to check for "new news".
Mississippi/5th U.S. Circuit. Since the onset of DNA testing in the 1990s, we’ve been slowly learning that our criminal justice system frequently comes up short when it comes to keeping junk science and quack experts out of the courtroom. From bite mark matching to hair and fiber analysis to “shaken baby syndrome,” the courts have done a poor job of demanding that experts be qualified and credible, theories be grounded in science, and statements of certainty be verified with statistical sampling before allowing such expertise to be heard by a jury. And while the criminal justice system can’t seem to keep bad science out of its courtrooms during trial, once someone has been convicted, the same system then puts a premium on the “finality” of a guilty verdict. The innocent are trapped by junk science that is repeatedly upheld by the courts in the name of "finality." Final Injustice.
United States: Most prosecutors are hard-working, honest and modestly paid. But they have accumulated so much power that abuse is inevitable. As Robert Jackson, U.S. Attorney in 1940, put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.” Kings of the Courtroom.
Virginia: With the shortest period of time in the nation in which to discover and present new evidence of innocence -- just 21 days -- Virginia desperately needs to throw out a lifeline to the wrongfully convicted that will give them a chance to do so beyond the first three weeks. In 2004, the legislature passed the writ of actual innocence statute to do this, but it has proven too rigid. Only four writs have been granted, all of which had backing from the State Attorney General, and even then, the judges were divided about granting the writs at all. One-word tinkering in 2013, changing "could" to "would," has failed to impress the Court of Appeals. A complete re-write is needed, but the Virginia legislature has no intention of making any further changes. Tough luck for the innocent person.
How the Criminal Legal System Buries Its Mistakes
Two cases, one in Illinois and the other in Louisiana, offer chilling proof that the criminal legal system in the US is only concerned with maintaining itself, with no regard for truth, justice or even human decency.
Illinois. “We convicted an innocent man,” the foreman of Anthony McKinney's jury told David Protess, at the time head of the Medill Innocence Project. But the efforts of Protess and his journalism students to free McKinney were turned into a smear campaign by Cook County State's Attorney Anita Alvarez. Protess was pushed out of the innocence project he founded, and McKinney died in prison. How Chicago Killed an Innocent Man.
Louisiana. Herman Wallace is dying in prison, his body ravaged by liver cancer, after spending 40 years in a 6' x 9' cell. He was convicted of killing a prison guard in 1974. The case against Wallace was pitifully weak when it was presented to that jury; some of the constitutional infirmities at trial were almost farcical. But over the years the courts of that state, along with Congress and the federal courts, have constructed a mighty wall protecting that jury's verdict. Layer upon layer of procedural protections has been built around it so that today, as Wallace nears death, it is easy to see the vast gulf that exists here between law and justice. What a sham trial in Louisiana says about the U.S. court system.
Washington. Recently retired PI Paul Henderson of Fremont, WA, has found evidence to exonerate 23 people. But wrongful convictions will continue, Henderson says, as long as police and prosecutors are not punished for them. “They should be held criminally responsible, in my view,” he says. “In the 23 exonerations I handled, some of them involved egregious misconduct, including police coercing witnesses into going along with a totally fabricated scenario of a murder. In a Pennsylvania case, the cops sat down like they were writing fiction and got three teenage kids to go along with the confession. But over the years not one cop or prosecutor in my cases who got caught red-handed making up stuff was ever charged with a crime. They were not even demoted. In fact, they are rewarded.
Illinois. A Chicago Tribune investigation finds that Chicago police have long ignored voluntary standards for polygraph exams, even as those methods and the examiners themselves have factored into cases costing the city millions of dollars in damages. Polygraphs and false confessions in Chicago.
Related: How the polygraph works.
As part of a series re-examining the state of criminal justice and wrongful convictions in the US, Pacific Standard Magazine writes A Prescription for Criminal Justice: Embrace the Errors, Then Fix Them. Also see our sections on Arson, Junk Science and Police/Prosecutor Misconduct for more information on this subject.
A now-80-year-old man should be exonerated in the 1955 murder of his wife because even the Nebraska Attorney General's Office admitted that his confession was false, an attorney for Darrel Parker said. So the Nebraska Attorney General's Office withdrew it's admission. Out of sight, out of mind.
UPDATE: Amazing! On August 31, 2012, Nebraska Attorney General Jon Bruning apologized to Darrel Parker, conceded that Mr. Parker is innocent, and said he is due the $500,000 maximum compensation available under state law.
New York establishes commission to review wrongful convictions. A combination of police and prosecutorial review, the new commission has a long way to go to catch up with North Carolina's Innocence Review Commission, but it's a step in the right direction.
Virginia officials limit access to DNA test results. Testing of DNA in hundreds of old rape and murder cases has excluded 76 convicts so far, but officials are only releasing results to prosecutors' offices -- many of whom take no further action.
Related: In 1978, a student at William & Mary College in Williamsburg, Virginia, was raped. She identified Bennett Barbour as her assailant. Barbour had a solid alibi; he did not match the suspect's description; he was eliminated on the basis of simple blood type tests; he has brittle bone disease; and he did not have a gun. He was convicted solely on the basis of the victim's identification. In 2010, he was cleared by DNA, but Virginia authorities waited another 18 months to notify him. He's dying, and hopes his name will be officially cleared before he passes away.
Silence is golden. It seems hard to imagine that anyone of sound mind would take the blame for something he did not do. But several researchers have found it surprisingly easy to make people fess up to invented misdemeanors.
Do snitches serve justice? Jailhouse informants are nothing new. In 1819, Vermont authorities could not solve an alleged homicide. The victim was missing, and the authorities sought the help of a jailhouse informant who received a “confession” from a suspect, who was ultimately sentenced to death. Only days before the scheduled execution, the “murder victim” strolled back into town very much alive. Has anything changed?
Debra Brown exoneration: a pivotal case. Legal experts say the Utah woman could be the face of the future. It shows people can be convicted wrongfully and then vindicated through ways other than science
Why Avery Matters. Prosecutor Michael Griesbach takes a broader and more dispassionate view of the Steven Avery wrongful conviction, because when considered in its entirety, the Avery saga raises difficult and painful questions that go to the heart of our justice system.
A pawn in a legal chess match. Shirley Ree Smith of Van Nuys, CA spent 10 years behind bars for the death of her grandson before her conviction was overturned. Now she waits on skid row as the courts sort out whether a jury's verdict — even if wrong — must prevail.
UPDATE: April 6, 2012 - California Gov. Jerry Brown has commuted Shirley Ree Smith's sentence. She will not have to return to prison.
Confessing to crimes they didn't commit. Eddie Lowery of Kansas City, MO lost 10 years of his life for a crime he did not commit. There was no physical evidence at his trial for rape, but one overwhelming factor put him away: he confessed. But more than 40 others have given confessions since 1976 that DNA evidence later showed were false, according to records compiled by Brandon L. Garrett, a professor at the University of Virginia School of Law. Experts have long known that some kinds of people — including the mentally impaired, the mentally ill, the young and the easily led — are the likeliest to be induced to confess. There are also people like Mr. Lowery, who says he was just pressed beyond endurance by persistent interrogators.
More innovation in Illinois to chill journalist investigations. In 1994, Carolyn Nielsen was a graduate student at Northwestern University's Medill School of Journalism when she wrote stories that questioned the trial and subsequent murder conviction of a 14-year-old Chicago boy. Nothing came of it then. The boy, Thaddeus Jimenez, was sent to prison and Nielsen went on to become an assistant professor of journalism at Western Washington University. But Ms. Nielsen's work got the attention of the Center on Wrongful Convictions, and their efforts led to his exoneration in May of 2009. Now that he's sued the cops who framed him, the police defense lawyers want Ms. Nielsen's notes from 1994.
Another reminder of the role of the press in exonerations. On Thursday, January 14, 2010, Michael Tillman walked out of the Cook County Courthouse and headed straight for Mac Arthur's Restaurant, a soul food institution on Chicago's West Side. After 23 years of being wrongfully incarcerated and facing a life behind bars, the barbeque ribs tasted particularly sweet. "If it weren't for the publicity that was brought to the case in the early stages, being only a couple of years ago, by AlterNet… he might still be in prison now," Flint Taylor founding partner of the People's Law Office and co-counsel in Tillman's case, told AlterNet.
Missed it by that much. The U.S. Supreme Court announced late on January 4, 2010 that it had dismissed an important pending case over prosecutorial immunity after being alerted that the dispute had been settled. The action stops in its tracks a case that could have produced a landmark decision that many believed would have reined in the longstanding tradition that prosecutors cannot be held liable for their actions as prosecutors.
In Illinois, an innovative approach to keeping journalists from investigating innocence claims. Journalism students at Northwestern University say they have uncovered new evidence that proves Anthony McKinney's innocence in a murder case. McKinney has spent 31 years in prison for the slaying. But as they prepare for a crucial hearing, the Cook County state's attorney has subpoenaed the students' grades, notes and recordings of witness interviews, the class syllabus and even e-mails they sent to each other and to professor David Protess of the university's Medill School of Journalism.
UPDATE: What do you get when you combine the vicious competition of academe with the win-at-all-costs bulldozer techniques of a big city prosecutor? You get the two-pronged efforts of Northwestern University and the Cook County State's Attorney to destroy Prof. David Protess and negate thirty years of reversing wrongful convictions. A watchdog professor, now defending himself.
List of Innocent Prisoners Freed by Prof. Protess and His Students.
USDOJ's proposed new rules focus on discovery. Under fire for its handling of the criminal case against former Sen. Ted Stevens, the Justice Department last week outlined a plan to ensure prosecutors play by the rules when dealing with evidence. But some criminal defense lawyers and judges say the reforms don't go far enough.
Revisiting DNA waivers. Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law. The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence. The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges.
Darn! The cops will actually have to investigate. When Perry Bai was found stabbed to death in his Perry Township, Ohio home, police pursued a classic investigation. They decided Bai's former roommate, Joseph Grossi, walked 17 miles to Bai's home and killed him. Grossi, who suffers from bipolar disorder and schizophrenia, was brought in for questioning, denied his medications and after hours of intense interrogation, he confessed. Stark County Common Pleas Judge Charles E. Brown Jr. found their methods were just hunky-dory and the confession could be used against Grossi at trial. But the crime lab found evidence implicating others, and a polygraph test cleared Grossi. Looks like the cops in Stark County, Ohio will have to actually investigate this crime.
Innocence claim trumps late filing. Kevin Phelps, serving a life sentence for a 1993 murder in Richmond, California, has been trying for more than a decade to get a federal judge to hear his claim of innocence, and may soon get his chance. In overturning a series of decisions that barred Phelps' appeal because his lawyer filed his appeal 15 days too late, the 9th U.S. Circuit Court of Appeals said, "Far too often in recent years, concern for efficiency and procedure has overshadowed concern for basic fairness."
What's sauce for the goose, is sauce for the gander. Ever wonder what that old adage means? Here's an example. In Wisconsin--as in every state in the U.S.--cops and prosecutors are allowed to use deception when conducting an investigation. When Madison, WI defense attorney Stephen Hurley used deception to build his client's defense, the prosecutor cried foul and filed an ethics complaint against Hurley. But referee Judith Sperling-Newton said Hurley's actions were allowed. She also noted a double standard between prosecutors and defense attorneys - who are all governed by the same Supreme Court rules.
No more turning a blind eye. About 14 years ago, Dane County (Wisconsin) Assistant District Attorney John Norsetter allegedly got a call that attorneys for Ralph Armstrong say would've blown the murder case against their client apart — if only they'd known about it. A proposed rule pending before the Wisconsin Supreme Court would require prosecutors who receive such explosive information to reveal it to the defense — and possibly to investigate it. The current Supreme Court rules for prosecutors require only that exculpatory evidence be turned over to the defense before trial.
Better late than never. As part of a criminal justice review unprecedented in county history, the Santa Clara County, CA public defender's has launched a massive project to revisit 1,500 or more sexual assault convictions dating back two decades to determine whether innocent people may have been put behind bars. Members of Valley Medical Center's Sexual Assault Response Team have been videotaping examinations of patients since 1991, but prosecutors failed to inform defense attorneys in cases involving those patients that such critical evidence existed. Under pressure to answer for the failure, District Attorney Dolores Carr has since revealed there are 3,300 such tapes in existence, and this week she vowed to inform defense attorneys of each case involving a medical-exam videotape where a defendant was convicted.
They're following in Mike Nifong's footsteps. An angry federal judge held Justice Department lawyers in contempt yesterday for failing to deliver documents to former senator Ted Stevens's legal team, as he had ordered. "That was a court order," U.S. District Judge Emmet G. Sullivan bellowed. "That wasn't a request. I didn't ask for them out of the kindness of your hearts. . . . Isn't the Department of Justice taking court orders seriously these days?" Judges rarely hold prosecutors in contempt.
$2.6 Million in Payoffs. For years, the juvenile court system in Wilkes-Barre, PA operated like a conveyor belt: Youngsters were brought before judges without a lawyer, given hearings that lasted only a minute or two, and then sent off to juvenile prison for months for minor offenses. The explanation, prosecutors say, was corruption on the bench. In one of the most shocking cases of courtroom graft on record, two Pennsylvania judges have pled guilty to taking millions of dollars in kickbacks to send teenagers to two privately run youth detention centers.
But that's just the beginning. The two former judges, now admitted felons, are cooperating with federal law enforcement officials as they continue their probe into corruption at the courthouse Conahan used to run. The U.S. Attorney's Office is, in fact, investigating possible case fixing in Luzerne County's uninsured and underinsured motorist cases and has been for some time. So you think it's just bad kids and adult criminals who were abused? Everybody suffers.
US Supreme Court to hear Alaska man's appeal for DNA testing. William Osborne, convicted of a brutal rape near Fort Richardson in 1993, continues to fight for a sophisticated DNA test his lawyers say could prove him innocent. The State of Alaska says he should be denied the DNA testing because it would only prove his guilt. Osborne's lawyers are incredulous at the state's position. If it's probably going to cement his guilt, and the defense is willing to pay for the $1,000 test, why not just do it? The test can provide a final answer, perhaps put the lie to Osborne's all-or-nothing trial defense: He wasn't even there that night, his lawyer told jurors. The victim's testimony was a case of mistaken identity.
Dying to get out of prison. In 1985, Timothy Cole was a student in Lubbock when he was arrested and accused of being the Texas Tech rapist. A string of coeds had been raped, and the young African-American man from Fort Worth, who'd never been in trouble with the law before, was convicted largely on the eyewitness account of one rape victim. The real rapist, Jerry Wayne Johnson, waited for the statute of limitations to toll in 1995 and began writing to the courts, confessing. Judges and the prosecutor who obtained Timothy's conviction ignored him. Finally, in 2007, Johnson's letter of confession reached Timothy's mother. It was too late for Timothy. He died in prison in 1999 from an asthma attack.
Once you frame a suspect, never admit you are wrong. Herbie Gonzalez of Los Angeles, CA spent 196 days in jail, framed by two sheriff's investigators, Katherine Gallagher and Randy Seymour, who didn't hesitate to perjure themselves to make murder, robbery and residential burglary charges stick. When Judge Cary Nishimoto dismissed the charges because Herbie's "confession" was clearly coerced, Detectives Gallagher and Seymour implied he got off on a "technicality." And when the real killer, Milton Gallardo, was identified by DNA, Gallagher and Seymour continued to claim that Herbie was "somehow" involved in the crime.
Never let scientific facts stand in the way of a conviction. DNA evidence has been widely embraced over the last two decades as a powerful forensic tool to prove a defendant's guilt or innocence. But in Lake County, Illinois, authorities have sometimes pressed for convictions even when the DNA doesn't match a suspect. When DNA evidence excluded a man convicted in the rape and battery of a 68-year-old woman, State's Attorney Michael Mermel suggested the victim had consensual sex with someone else. When DNA evidence excluded a man in the rape and murder of an 11-year-old girl, Mermel and another prosecutor suggested that the girl may have been sexually active. The DNA, he said, was a "red herring." And, just recently, when lawyers for the man charged in the killing of his 8-year-old daughter and her 9-year-old friend said in court that DNA evidence from semen excluded him as the perpetrator, the Lake prosecutor had another explanation.
Alabama convicts lack access to DNA testing. Imagine for a moment that you are an inmate, and you were wrongly convicted. You’ve been sentenced to 50 years in an Alabama prison and there’s one piece of DNA-testable material sitting in an evidence locker in some Alabama courthouse that could finally and definitively prove your innocence. All you have to do is have it tested, and you could be set free. Good luck. You’re going to need it.
Without DNA evidence, exoneration is much tougher. But that is just what innocence projects are facing, especially in states where there is no requirement to preserve DNA evidence. Only 10% of the California Innocence Project's current cases are DNA cases.
DNA not preserved in half the states. Evidence preservation has been the key to over 200 exonerations -- and numerous cold cases where the science had not been developed until more recently. See where your state stands on this issue.
Vindictive prosecutor can be sued. In 1998, when he was 12 years old, Anthony Harris of New Philadelphia, OH was subjected to a brutal interrogation, then charged and convicted of the murder of Devan Duniver, who lived near Anthony. Two years later, an Ohio appeals court threw out the conviction, ruling that the interrogation was so coercive that Harris "had no choice but … to confess." Prosecutor Amanda Spies got mad and got even; when Anthony tried to enlist in the Marines, she told military officials he was a murderer. But vindictive conduct is not protected conduct. The 6th US Circuit Court has ruled that Anthony can sue Prosecutor Spies.
Punish Unethical Prosecutors The Dallas County district attorney who has built a national reputation on freeing the wrongfully convicted says prosecutors who intentionally withhold evidence should themselves face harsh sanctions – possibly even jail time. "Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized."
Like shooting fish in a barrel. That's the analogy for getting a "felon in possession of firearm" conviction. Did the defendant have a felony record? Did he or she have possession of a firearm? Answer yes to both questions and the defendant is transformed to inmate. But the 4th Circuit Court of Appeals has added a new requirement for police and for defense counsel: Rational thought. John David Mooney of Huntington, WV will be helping them learn that requirement by suing the cops and defense lawyers who helped put him in prison for a crime -- felon in possession of a firearm -- that he did not commit.
Wrong voice on the tape. Start with a 20-year-old cold case, two missing teenagers, and call their disappearance murder. Pick a suspect, a rapist serving a long prison term. Use a state psychologist to "help" the suspect's sister come up with "recovered memories" of seeing the missing teens at her family's farm. Recruit a seasoned snitch to get a confession on tape. Voila! You've got a conviction -- almost.
It was a stunning reversal of fortunes. After he was snared in a net of swirling controversies including an e-mail scandal and the high-profile indictment of a sitting Supreme Court justice followed by an immediate move to dismiss that case, Harris County (Houston), Texas, District Attorney Chuck Rosenthal resigned from office.
Erik and Sean Ibarra -- the power of common men. In a press release, Rosenthal said prescription drugs had impaired his judgment. But it was what happened inside a southeast Houston home six years ago that led to events in a federal courtroom and to Rosenthal's resignation.
The Greatest Threat to Individual Liberty is National Security. We must look to the UK for proof of this, since the US keeps its national security abuses hidden at Guantanamo Bay. So it was in London that a panel of 3 appellate judges completely exonerated Lotfi Raissi of any involvement in the 9/11 attacks. The judges further condemned the Metropolitan Police and the Crown Prosecution Service for abusing the court process, presenting false allegations and not disclosing evidence.
Felons Not Being Told of New Evidence. Virginia felons convicted of crimes before DNA testing was widely in use are not being notified when biological evidence is found in their old forensic case files. As a result, it is largely being left up to authorities to determine whether DNA testing is warranted in such cases and to interpret whether the results have any bearing on innocence. In a groundbreaking project far larger than first envisioned, the Virginia Department of Forensic Science has searched 530,079 paper files dating from 1973 to 1988, finding 2,215 that contain crime-scene biological material and include a suspect's name. Five men wrongly convicted of rape have been cleared with evidence from the old files. Advocates and others are concerned that for the most part, only authorities are being told the evidence exists and not the felons who potentially have the most at stake.
How the System SHOULD Work. When Craig Watkins took office as Dallas County (Texas) District Attorney in January, 2007, prosecutors found mounted on the walls of their workrooms a large, black-framed blowup of Article 2.01 of the Texas Code of Criminal Procedure, with only one sentence highlighted: "It shall be the duty of all prosecuting attorneys, including any special prosecutors, not to convict but to see that justice is done." Watkins said he had the code provision framed and mounted to serve as a daily reminder to his 234 assistant DAs of their ethical obligations and as a message to criminal-defense attorneys that what he termed the "conviction-at-all-cost" era had ended.
Taking a Sledgehammer to the Constitution. In a breathtaking abuse of the United States Constitution, Sheriff Joe Arpaio, Maricopa County Attorney Andrew Thomas, and special prosecutor Dennis Wilenchik, used the grand jury to subpoena "all documents related to articles and other content published by Phoenix New Times newspaper in print and on the Phoenix New Times website, regarding Sheriff Joe Arpaio from January 1, 2004 to the present." More alarming still, Arpaio, Thomas, and Wilenchik subpoenaed detailed information on anyone who has looked at the New Times Web site since 2004.
Within hours of the Phoenix New Times blowing the whistle on Sheriff Arpaio, County Attorney Thomas and special prosecutor Wilenchik, the two top executives of the newspaper were arrested. By the next day, public outcry was such that the charges were dropped and Wilenchik was fired. Which leads to our question: Why are Sheriff Arpaio and County Attorney Thomas still in office?
Exoneration by DNA Brings Changes to System. State lawmakers across the country are adopting broad changes to criminal justice procedures as a response to the exoneration of more than 200 convicts through the use of DNA evidence. All but eight states now give inmates varying degrees of access to DNA evidence that might not have been available at the time of their convictions. Many states are also overhauling the way witnesses identify suspects, crime labs handle evidence and informants are used.
Never Admit You are Wrong. In the fall of 1995, a man wearing a nylon stocking over his face broke into the Yakima, Washington home of a young mother. He taped a mask to the woman's face and raped her while her child screamed in the background. Ted Bradford was convicted of the rape and served a 9-year sentence, but always said he was innocent. DNA from the tape used on the mask excluded him and an appeals court has vacated his conviction. Yakima deputy prosecutor Kevin Eilmes plans to retry Bradford.
Abuse at the early stages. The power, if not the arrogance, of prosecutors grated on Angela Davis throughout her 12 years at the D.C. Public Defender Service, three as its director. Now a law professor at American University, she has made a mission of exposing that power--on radio and TV and in a new book, Arbitrary Justice--with hopes of reining it in. Her beef is not so much with prosecutors breaking the rules, although plenty do. Davis' greater worry is all the behavior considered within bounds but outside any reasonable notion of fair play.
Wrongful Convictions Studied. A groundbreaking study of the first 200 people cleared by DNA testing in the U.S. identifies flaws that led to the wrongful convictions and to the failures of appeals courts to detect and remedy them. The author, Brandon L. Garrett, a professor at the University of Virginia School of Law, said the DNA exonerations provide an unprecedented opportunity to conduct analyses on how things can go wrong despite the safeguards built into the legal system to prevent and then correct such errors.
Is Virginia's New Evidence Law Too Tough? Three years after felons were allowed to petition the Virginia Court of Appeals with non-DNA evidence of innocence, few have done so, and none has been found innocent. "The criticism from the beginning was that the procedures were too complicated and the hurdles too high," said Kent Willis, executive director of the American Civil Liberties Union of Virginia. "While in principal it was important to pass this bill, the practical effect was minimal."
Making a Chew Toy of Justice. James Ochoa of Los Angeles, CA was 20 years old when he was identified by two witnesses as the man who committed a carjacking and robbery. The DA put him on trial, despite of the fact that DNA from the carjacker's clothing had eliminated Ochoa. After the first witness testified, the DA offered Ochoa 2 years prison for a plea to second-degree robbery, and Judge Robert Fitzgerald told Ochoa he would give him the max -- 16 years to life -- if he was convicted. Ochoa took the plea deal, and served almost half before the DNA was matched to another man convicted in a similar carjacking/robbery. Ochoa has submitted a claim for compensation, but the California Attorney General is opposing it, claiming his clearly coerced guilty plea was voluntary, so he doesn't "qualify."
Oops -- Clerical Error. In April 2005, an Indianapolis, Indiana judge exonerated Harold Buntin of robbery and rape charges based on DNA test results, but the rest of the justice system didn't find out about the decision for two more years. Court officials found that a bailiff or clerk failed to properly enter and distribute the order clearing Buntin. Instead, the order was sent to storage. He spent an extra two years in prison for a crime he didn't commit.
'Sorry. Have a nice day.' Andre Wallace of Chicago, IL was a 15-year-old kid when he was picked up by police, subjected to 'good cop/bad cop' interrogation, beaten and forced to confess to a murder he did not commit. He spent 10 years in prison and was released in 2002. In 2003, Andre sued the officers who falsely arrested him. The US Supreme Court has ruled he filed way too late, that the clock on the 2-year time limit to sue for civil rights violations starts running at the time a person is arrested, not when he is exonerated. It's a slap in the face of the wrongly convicted, and another 'attaboy' for the cops who beat a confession out of a kid.
Early Access to Police Reports can Save the Innocent. Weighing in on the case of a theology teacher charged with sexually assaulting a student 16 years ago, the Wisconsin Innocence Project and state public defender's office are calling for the end of the long-standing practice of withholding police reports from defendants in the early stages of prosecution. "The ability of defense counsel to access investigative information in a timely manner has been identified as a major cause of error in criminal cases," the agencies said in the filing. "Exoneration cases show that a suppression of evidence was a major factor in a significant number of wrongful convictions."
Don't Count on Lawsuit. The lawyer for Bill Conradt, a Chicago, IL man whose illegal arrest led to more than eight years behind bars pleaded with the Supreme Court to allow his client to sue the police who arrested him. To do otherwise, lawyer Kenneth Flaxman said, the justice system would be saying, "It's just tough. You're seized for 8 1/2 years, and you can't go to state court, and you can't go to federal court." But it all depends on whether the clock starts running on the statute of limitations when the illegal arrest happens, or after you have been exonerated.
No Different Down Under. In Western Australia, Andrew Mallard spent 12 years in prison for the murder of a woman he had never met. His exoneration was historic, but Director of Public Prosecutions Robert Cock QC tagged him "the prime suspect'' despite dropping the wilful murder charge. Thanks to Cock's "last tag," Mallard is locked out of shops, and mothers steer their children away from him.
False Confessions: An Important Series from the Pittsburgh Post-Gazette
and The Innocence Institute of Point Park University
New York How would you like to be the defendant in a high-profile murder case and have Carlos Perez-Olivo representing you? In closing argument, he told the jury, "There's more, but I've forgotten it." Perez-Olivo has finally been disbarred, not for his performance in the murder case, but for lying to and stealing from his clients. A true criminal lawyer.
California An unusual wrinkle has developed in the case of a man who was exonerated by DNA testing after serving 12 years in prison for a rape and robbery he did not commit. Although the Riverside County district attorney declared Herman Atkins innocent in 2000, the county wants to prevent the jury hearing his wrongful conviction lawsuit from learning about the evidence that cleared him. While keeping out the DNA results, the county's lawyers also want to introduce evidence that the rape victim and two witnesses identified Atkins during his trial. The State is Never Wrong, and Never Liable.
Two weeks before Jonathan Peskin's ordeal began in early January 2005, another blameless citizen in another Connecticut community was subjected to a nine-hour confrontational "interview" by police pretending he was not a suspect and not in custody. Bereaved, Blameless, But Bullied for Hours
California (and the rest of the US): Former FBI Agent James Wedick, a superstar at the agency, is the latest casualty in the war on terror. After viewing the interrogation tapes of Umer and Hamid Hayat, Wedick, the G-man though and through, was stunned. He immediately called the defense attorney and told him -- "it's the sorriest interrogation, the sorriest confession, I've ever seen." As hard as it was for him to criticize his former colleagues and his beloved former employer, he felt compelled to testify for the defense, the first such time he had ever opposed the agency. But, as Mark Araz writes in his excellent story reposted here from the LA Times, the judge refused to allow him to testify. Arax's story is not only a story of two wrongful convictions -- it is a powerful story of how the FBI has changed since 9/11. Desperate to sniff out Al Qaeda cells, millions of dollars in taxpayer money is being spent on investigations being led by rookie agents who lack the expertise to lead them. Caution is being thrown to the wind, procedures are being tossed out the window, civil liberties are being trampled, all in the name of catching terrorists. The Agent Who Might Have Saved Hamid Hayat
UPDATE: Before any jury trial begins in the United States, prospective jurors are instructed that a defendant is presumed innocent. It’s up to prosecutors to prove guilt “beyond a reasonable doubt,” and the potential jurors are asked if they can abide by that rule. Hamid Hayat’s terrorism trial last year was no exception, and the 12 jurors who heard the Lodi man’s case raised no objections to jury rules. But the foreman who led them to a guilty verdict later said publicly that it was better to risk convicting an innocent man than to acquit a guilty man. It's Okay to Make the Innocent Pay
Florida (and the rest of the US): Orlando Bosquete came to the U.S. in 1980, part of the Mariel boat-lift. In 1982, he was convicted of raping a Key West, FL woman, a crime he did not commit, and sentenced to 55 years in prison. He escaped in 1985 and was captured 10 years later. Three months later, he escaped again and stayed out for a year. Now, DNA has proven Orlando innocent of the 1982 rape. The judge has set him free. The prosecutor has apologized. And U.S. Immigration has thrown him into jail, intending to deport him because while he was on the run, he failed to register and properly pursue citizenship. Proud to be an American
Wisconsin (and the rest of the US): Three days into Evan Zimmerman's murder retrial, Eau Claire County DA Rich White threw in the towel. He told the court he could not prove the case against Zimmerman and moved for dismissal. What drove the case against Evan Zimmerman is the same phenomenon that drove the cases against Scott Hornoff, John Maloney and so many of the other innocent men and women -- those who have been cleared and those who languish in prison -- tunnel vision on the part of investigators and prosecutors. Even when proven to be absolutely wrong, they cling to theories that keep dangerous criminals on the street and put us all at risk. Tunnel Vision
Illinois: A lawsuit was predictable in the case of two teenagers who were wrongly charged in the February slaying of a Machesney Park, Illinois man. The lawsuit was brought by mothers of the two youths who were wrongly charged, and it names Winnebago County Sheriff Dick Meyers, his department, detectives and deputies. It's time for Safeguards to Protect Accused Kids.
USA: The popularity of "CSI: Crime Scene Investigation" and its increasingly numerous progeny has spawned what some folks are calling the "CSI Effect." That is, most people who might end up on a jury know, or think they know, a great deal about forensic science and the kind of evidence needed to solve crimes. All this has been widely noted. What hasn't been noted is how years of cop shows have already formed our background ideas about the criminal justice system. What this suggests is that we ought to be a good deal more suspicious of prosecutorial infallibility than television shows suggest. Cop Show Effect
Canada, US and the World: Wrongful convictions continue to plague justice systems in Canada and elsewhere despite studies and reports on the issue, says a report by federal, provincial and territorial prosecutors and police. What is startling, however, is that some problems, themes and mistakes arise time and time again, regardless of where the miscarriage of justice took place. It's Everyone's Problem
Michigan: Rev. Bill Barnwell describes in painful detail how ambitious federal prosecutors invented phony, made-up federal crimes to frame his father for crimes that do not even exist. How Thuggish Federal Prosecutors Destroyed My Family
Massachusetts: A prominent Boston defense attorney should be barred from practicing law because he allegedly mishandled clients' money and neglected a case in the past decade, according to a recommendation from the state board that oversees lawyers. John C. McBride took tens of thousands of dollars in fees he did not earn and failed to show up in court after being paid by one defendant, who ended up defending himself, according to the Board of Bar Overseers. Incompetent and Crooked
California: In his second day of questioning by Los Angeles police detectives, David Allen Jones sealed his fate. Although never admitting to murder, he repeatedly incriminated himself in the deaths of three prostitutes. By the time he got to describing what happened with the third woman, Mary Edwards, the story came easily. On the strength of the incriminating statements, a jury convicted Jones of the three killings. But there was a problem: Jones did not kill them. Eleven years later, DNA and other evidence exonerated Jones and a judge voided his conviction in the killings. He was freed in March, 2004. Tell Them What They Want to Hear
Michigan: In June, 2004, a man opened fire at the International Freedom Festival fireworks and shot 9 people; one later died. Detroit Police lost no time arresting Darren Caldwell. Just as quickly, witnesses protested the cops had charged the wrong man. No matter. Detroit Police altered their reports to make the charges stick and on September 1, 2004, added the charge of murder. Caldwell remains in jail with bond posted at $100 million. It is clear the criminal legal system offers Caldwell no hope. Rather, investigative journalists -- print and television -- are keeping the truth in focus as this travesty continues to unfold.
Detroit Free Press ReportNew Zealand: Ever wonder if it's different in other parts of the world with legal systems that share the same origins as that in the US? It's not. When Kathy Sheffield was murdered in 1994, Lawrence Lloyd knew he didn't do it, but he couldn't remember what happened, so he confessed. He served 7 years in prison. Now it turns out He's Innocent.
UPDATE: Caldwell Freed on DNA Evidence
UPDATE: Caldwell sues for $100 Million
Florida: Wilton Dedge of Port St. John, Florida has been freed after 22 years in prison for a rape he did not commit. His conviction rested on the word of notorious snitch Clarence Zacke, who got a sweetheart deal from prosecutors in exchange for lying under oath. When DNA excluded Dedge, a Florida Assistant Attorney General told the 5th Circuit Court of Appeals that even if she knew Dedge to be innocent, it would not matter. Zacke provided the only evidence in Gerald Stano's murder case, and subsequently recanted it. Stano was executed in 1998 anyway, still insisting he was innocent. But in the words of the Florida Assistant Attorney General, "That is not the issue". Infamous Justice
Texas: Robert Carroll Coney was in prison when President John F. Kennedy was assassinated. He was in prison when the Beatles came to America, when men walked on the moon, when the war raged in Vietnam, when Communism fell, and when the Internet and cellphones were invented. But after spending almost every day of the last 42 years behind bars, Mr. Coney, 76, walked out of the Angelina County jail in Lufkin. A state district judge had found credence in Mr. Coney's longstanding claims that he had been beaten into pleading guilty, without a lawyer, to a $2,000 Safeway supermarket robbery that landed him a life sentence in 1962. The judge further found a long-forgotten court order should have expunged those criminal charges as far back as 1973. American Les Miserables
Update: No Bars Can Keep Them Apart
The True Love Story of Robert and Shirley Coney
Massachusetts: Ever wonder about the reliability of unrecorded confessions -- the ones with no audio or video tape -- or the ones where ten minutes of confession is recorded but not the ten hours of interrogation that preceded it? In Massachusetts, jurors will now be instructed to be skeptical when "'interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation". New MA Jury Instructions
The ABA's President for 2004-2005, Robert Grey, Jr. (a man we know and admire) is launching a major revision of jury standards. The new standards will likely transform jurors from passive observers to active participants. ABA Jury Standards
Do you really believe that old saw about the US criminal justice system being the best possible system, and that convicts with innocence claims have multiple opportunities to present their claims to appellate courts? Rick Casey of the Houston Chronicle takes a clear-eyed look at how the law really works for the wrongly convicted -- or more accurately, how it works against them. He writes about Texas, but the situation is no different in any other state. Law Tough on Wrongly Convicted
Ohio: Convicted of rape and exonerated after 13 years in prison, Michael Green of Cleveland, Ohio sued the city for $10 million. He settled his case for $1.6 million -- and re-opening of more than 100 cases that included testimony from Joseph Serowik, the same forensics lab worker who falsely testified in Green's trial. Doing the Right Thing
United States: A comprehensive study of 328 criminal cases over the last 15 years in which the convicted person was exonerated suggests that there are Thousands of Innocent People in Prison.
Plea Agreements: Between 5% and 10% of those convicted of felony crimes are factually innocent -- and 95% of them pled guilty. Producer Ofra Bikel's documentary, premiering June 17, 2004 on PBS' Frontline, examines the moral, judicial and constitutional implications of the push to resolve cases by pressuring defendants into plea agreements -- guilty or not. The Plea
Back in the Mother Country: What do the Brits give someone who’s been proved innocent after spending the best part of their life behind bars, wrongfully convicted of a crime they didn’t commit? An apology, maybe? Counselling? Champagne? Compensation? Well, if you’re David Blunkett, the Labour Home Secretary, the choice is simple: you give them a big, fat bill for the cost of board and lodgings for the time they spent freeloading at Her Majesty’s Pleasure in British prisons. Ain't No Better in Britain
Paul Craig Roberts Commentary: Martha Stewart was indicted for lying and obstructing justice. For these offenses to have any meaning, there must be a crime that she lied about and obstructed. The prosecutors presented no such crime. Stewart was indicted and convicted for lying and obstructing a crime when no crime happened. Judicial System Casualty
Real Killer's Identity Disclosed: Kenneth Maurice Tinsley raped and murdered Rebecca Williams in 1982 in Culpeper, VA. Police took advantage of mildly retarded farmhand Earl Washington, feeding him details of the crime to win a quick conviction that put Washington on Death Row for 9 1/2 years. Tinsely was identified in 2000 through the same DNA tests that exonerated Washington. But there are no plans to prosecute him. In fact, the Commonwealth had to be ordered by a federal judge to turn over turn over records identifying Tinsley to Washington's lawyers. And what about Rebecca Williams' husband and children? Where is Justice?
Unlimited Police Powers: NJ Superior Court Judge Andrew P. Napolitano (Ret.) notes the Constitution prohibits invasions of privacy by the government by denying it the power to engage in unreasonable searches and seizures absent a warrant issued upon probable cause. But in October 2001, the Patriot Act changed all this. In addition to other violations of the Constitution which it purports to sanction, the Act authorizes intelligence agencies to give what they obtain without probable cause to prosecutors; and it authorizes prosecutors to use the information thus received in ordinary criminal prosecutions. Even worse, the custodians of the records are now prohibited from telling you that your records were sought or surrendered. Repeal the Patriot Act
After Exoneration: In New Jersey, DNA evidence cleared John Dixon of rape and freed him from prison in 2001, but he now seeks another sort of vindication. He has sued the public defender's office, alleging that for 10 years it turned a deaf ear to his requests for DNA testing. And on Feb. 6, 2004 Essex County Judge Mary Jacobson denied a motion to dismiss his suit, Dixon v. Segars, L-7598. Ineffective Assistance by Public Defenders
Keeping Hatred Alive: Darryl Hunt's long imprisonment in connection with the 1984 rape and murder of Deborah Sykes in Winston-Salem, NC was a case of mistaken identity. Another man killed her, the police and prosecutors have admitted. And most importantly, that man acted alone. Unfortunately, police and prosecutors were so thorough in inciting hatred and a desire for revenge against Darryl Hunt in Deborah Sykes' family that her mother and step-father refuse to accept Hunt's innocence. Bitter Justice
Erasing Innocence: In a move that Connecticut Freedom of Information Commission hearing officer Victor Perpetua likened to a scene from "Alice in Wonderland," State Police argue they cannot release files associated with the infamous Peter Reilly murder case from the 1970s because those files have been "erased." Odd Developments
UPDATE: More developments in this odd case of "erased" files -- a potential settlement. Apparently those files were Not Erased.
Guest Editorial by Don B. Laws: Scott cheated on his wife and then lied about it. He told the world he had a great marriage and then his infidelity was exposed. Suddenly where he was and when became critically important, because he was the only suspect in a murder with no direct evidence against him. If he cheated and lied, did he commit murder, too? Does this sound like Scott Peterson? The similarities are striking, but this was Before Scott Peterson
Paul Craig Roberts Commentary: Every day many Americans commit crimes of which they are unaware. Many of the crimes with which Americans are charged are absurd. We have become a country that goes out of its way to imprison innocent people, while preaching democracy to the rest of the world. Jailing the Innocent
A Trio of Miscreants: To paraphrase Rod Serling of The Twilight Zone (an apt choice), here for your edification are three examples of petty and even criminal behavior by officers of the court -- two judges and a lawyer.
Win Your Appeal and Double Your Sentence: When the 9th Circuit Court of Appeals threw out 6 of the 8 guilty verdicts against Fatima Peyton for her role in an identity theft ring, U.S. District Judge Rudi Brewster (San Diego) added enhancements and doubled the original sentence.
Judge's Jury Selection Instructions are Abuse of Authority: Placer County, CA Superior Court Judge Joseph O'Flaherty has been charged with judicial misconduct for instructing potential jurors to lie about their racial prejudices.
Forward His Messages to the Warden: Milwaukee, WI personal injury lawyer Charles Hausmann pled guilty in June 2002 to defrauding some 200 clients in a kick-back scheme he had going with a local doctor. Hausmann is in prison, but he's still in good standing with the Office of Lawyer Regulation, which has taken no action whatsoever to discipline him.
Wisconsin: Well, maybe the Wisconsin Office of Lawyer Regulation just followed its normal procedure in failing to discipline Charles Hausmann. Two Winnebago County, WI judges filed complaints against Oshkosh lawyer Milton Schierland for splitting bribe money with former DA Joe Paulus in their long-running case fixing scheme. The FBI found grounds to investigate; both lawyers have pled guilty to federal charges. But the OLR kicked the complaints back, saying there was "Insufficient Information to Suggest Misconduct".
UPDATE: Back in 1997, another Winnebago County judge became suspicious of a "fix" when one of Paulus' assistants wanted to dismiss a speeding ticket for the nephew of a Paulus political supporter. Judge William Carver refused to dismiss the ticket and filed a complaint with the ethics board. "We had a suspicion somebody wasn't telling the truth," one of the investigators acknowledged. Nonetheless, the grievance was Dismissed as Usual
Pennsylvania: In November, 2003, Pennsylvania voters voted to deny criminal defendants the right to confront their accusers in court. They probably felt there would be no cost to themselves. But if we let witnesses avoid accountability in criminal proceedings, we all will pay a high price, eventually. No Accountability
Louisiana: Wrongful convictions are being uncovered in greater numbers than ever in Louisiana (19) and other states. More than half of all wrongful convictions in Louisiana have come to light in the past five years, and so have dozens of others around the country. Most are not declared innocent or cleared of involvement in the crime that sent them to prison in the first place. Living in Limbo
Massachusetts: Saying that Shawn Drumgold is the "tip of the iceberg," the head of the Massachusetts public defender's office yesterday called on the state to create an innocence commission to review the cases of other inmates, and Drumgold's attorney demanded that the police who investigated his case be held accountable. Innocence Panel Proposed
Northern Kentucky Law Review Articles Examine the Roles of Judges and Defense Lawyers in Wrongful Conviction
The Complicity of Judges in the Generation of Wrongful Convictions (pdf format)
by Hans Sherrer
"Bad Lawyering": How Defense Attorneys Help Convict the Innocent (MS Word format)
by Sheila Martin Berry
Wisconsin: Steven Avery spent 17 years in prison for a rape committed by another man. State Rep. Mark Gundrum has organized a task force to determine what went wrong and what can be done to Fix A Broken System.
Until the system is reformed and the public becomes aware, we cannot presume a connection between conviction and guilt. Conservative columnist Paul Craig Roberts asks, Where's the Justice?
Remember Jean Valjean, hero of Victor Hugo's Les Miserables? In Hugo's story, Valjean served 19 years in Toulon prison camp for stealing a loaf of bread, then had to hide his identity when the bishop framed him for stealing two candlesticks. Les Miserables was fiction, and it was set in France over 150 years ago. Life imitates art and history repeats itself in California's 3 strikes law. For the second time in three months, the US 9th Circuit Court of Appeals has found California's 3 strikes law unconstitutional when it puts petty shoplifters in prison for 50 years to life with no parole. Jean Valjean, Redux
We know that some unbalanced people will come forward and confess to crimes they didn't commit. These walk-in false confessions bear little resemblence to the facts of the crimes, and rarely lead to prosecution. In New York, authorities have discovered a corollary phenomenon: an unbalanced individual who comes forward and claims to have witnessed crimes he never saw, and to identify innocent people as perpetrators. He has been believed. He has destroyed lives. He is a Liar.
James McCloskey, Director of Centurion Ministries, Inc., describes the factors that lead to wrongful conviction in excerpts from his law journal article: "Convicting the Innocent."
New Orleans Attorney Joan Canny was the deadlocking member of a hung jury in a murder trial. Then she joined the defense for re-trial ~ and won an acquittal. One Angry Juror
"For the first time, the people are beginning to understand the power that prosecutors have," says Rep. William Delahunt (D-Mass.), a member of the House Judiciary Committee who is sponsoring three pieces of legislation tailored to tip the balance of power away from prosecutors and rein in abuses of authority. Grand Jury: Power Shift?