Posted 12/7/08

CAN WE OUTLAW
WRONGFUL CONVICTIONS? (PART II)

Legislator proposes banning showups and recording all interrogations

     By Julius (Jay) Wachtel.  Do you enjoy getting scared out of your wits?  Then you’d love the Lone Star State.  According to the Justice Project, the place that gave us the groundbreaking horror film The Texas Chainsaw Massacre has been at the forefront of another spine-tingling exercise: locking up the innocent.  For an example that will stand your hair on end look no further than Billy Miller.

     No one claims that Billy was a nice guy.  In 1983, on parole for armed robbery, he was staying with friends when early one morning police came knocking.  They were looking for a suspected rapist, although with a different first name.  At 3 a.m. cops had Miller step outside for a “showup,” a one-on-one procedure commonly used soon after a crime occurs.  The victim, who was sitting in a patrol car, instantly identified him.  He was convicted and spent twenty-two years in prison before DNA tests proved his innocence.  The woman who pointed him out has since gained a lengthy record for prostitution and other minor crimes.

     At least three of the 18 wrongful convictions uncovered in Dallas County during the past years were caused by flawed showups.  Critics of the procedure argue that presenting only one person for a look-see is unduly suggestive.  As Miller’s case demonstrates, bringing the witness to the suspect (instead of the other way around), as the National Institute of Justice recommends, may not be enough.  Texas State Senator Rodney Ellis, who recently introduced a package of bills to reform his State’s justice system, has gone so far as to suggest that showups be banned altogether.

     What’s wrong with that?  Consider the environment of policing.  Officers frequently encounter persons matching suspect descriptions in the vicinity of a crime.  Sometimes they’re in a vehicle, sometimes on foot.  Under the rules of stop-and-frisk police can temporarily detain persons if there is reasonable suspicion that they committed a crime.  Doesn’t it make sense to bring a victim or witness by for a look, right then and there?  Sure, officers can take a picture, let the suspect go and show the victim or witness a photo lineup later.  But by then the witness’s memory will have faded and the perpetrator -- if indeed he or she is the guilty party -- will be long gone, along with any evidence that prompt action might have turned up.

Click here for the complete collection of wrongful conviction essays

     Instead of recommending that showups be done away with altogether the National Institute of Justice has offered guidelines to reduce their suggestibility.  It’s advised, for example, that suspects not be viewed while seated in the back of patrol cars, and that if there are multiple witnesses only one participate in the showup while the rest view photo lineups.  And of course police should admonish the witness that this might not be the right person, take careful notes of what’s said and even record the event.

     Recording showups?  Well, why not?  As cases move through the system subtle pressures from police and prosecutors can make witnesses overconfident, turning a tentative “maybe” into a definite “that’s the one!”  Taping their initial reaction preserves an unimpeachable record of the original degree of certainty should it inflate over time.

     Taping police-citizen encounters has become routine.  Many officers carry miniature recorders and drive patrol cars with video cameras.  Interview rooms equipped with recording devices are commonplace.  Concerns that improper questioning techniques can precipitate false confessions have led a few States to enact laws that strongly encourage recording interrogations.  Maryland police must “whenever possible” make “reasonable efforts” to record in-custody interrogations of persons charged with murder and rape.  Nebraska has a similar law that applies only to “places of detention.”  Police in Washington D.C. must record custodial interrogations of persons charged with crimes of violence, but only when a suspect is interviewed in a room that has the appropriate equipment.

     Senator Ellis has introduced a bill that would ramp things up a significant notch, at least in Texas.  Police would be required to record all “custodial interrogations” for felony crimes, period.  On pain of inadmissibility, entire interviews would have to be recorded, not just the actual confessions.  But imagine that a patrol officer detains someone in the field.  Although “custodial” has a broader meaning than arrest, the legislation leaves both “custodial” and “interrogation” undefined and makes no exception for place or circumstance.  Accordingly, questioning anyone who may have been involved in wrongdoing without whipping out a tape recorder would invite litigation.  It’s just such  ambiguities that cause experienced officers to shake their heads.

     There is another pressing issue.  Interrogations can continue for hours and, occasionally, days.  But busy prosecutors and public defenders don’t have the time to watch videos and listen to tapes.  If the Senator’s bill passes as written detectives couldn’t file the simplest felony case without sending along verbatim transcripts, and in complex cases or those with multiple suspects, reams of transcripts.   Departments would require legions of secretaries to commit interrogations to paper.  Who would pay?  If “custodial interrogation” means what it seems to mean one thing is certain: should the bill become law police will probably do a lot less of it.

     Neither is recording a panacea.  It seems that something always “happened” before the cameras started rolling.  And even if everything is captured on tape, whether questioning was unduly coercive or suggestive isn’t always clear.  In 1993 three Arkansas teens were convicted of the brutal murder of three boys in what police described as a “Satanic ritual.”  Two of the accused got life and one was sentenced to death (they are still in prison awaiting the outcome of appeals.)  There were no witnesses or physical evidence.  Instead, the convictions were due to a taped confession by one of the accused, a developmentally disabled youth who was interviewed outside the presence of his parents or a lawyer.  His account, which he has since recanted, was preceded by hours of interrogation that weren’t recorded and, if one believes the detectives, in which no notes were kept.  What’s more, as a defense expert pointed out, a transcript of what was taped has police repeatedly -- and successfully -- prodding the teen to change his responses so they are consistent with their theory of the case.  It’s impossible to watch the court video (included in a commercial DVD of the case) without taking pity on the pathetically vulnerable youngster as he struggles to please the cops.  In the end his “confession” was admitted as evidence, with catastrophic consequences for himself and his friends.

     Technology can help.  But at the end of the day the best “cure” lies in the knowledge, skills and abilities of police and prosecutors.  Given the perils of witness identification and confessions, it’s appalling that few if any agencies have incorporated what’s known about these pressing issues into pre-service and in-service training.  Remember that for each innocent person convicted a guilty person goes free.  Considering the imperatives of public safety, the practicalities of law enforcement, the limits of law and technology, and the difficulty (some would safe, futility) of promoting change in the insular worlds of policing and prosecution from the outside, it seems more important than ever to spur reform from within.

     Is anyone listening?

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Is a Case Ever Too Cold?     When Seeing Shouldn’t be Believing     Wrongful and Indefensible

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Posted 11/23/08

CAN WE OUTLAW WRONGFUL CONVICTIONS?

Are sequential, double-blind lineups really the answer?

     By Julius (Jay) Wachtel.  “I think because of the outrageous number of wrongful convictions in Texas, it's time to begin the dialog.”  That’s how State Senator Rodney Ellis explained the purpose of a package of bills that would establish a Texas “Innocence Commission” and require that police follow strict procedures when investigating felony crimes to avoid making tragic mistakes.

     What rules does he propose?  For confessions to be admissible, custodial interrogations would have to be recorded in their entirety.  Photographic and in-person lineups could only be done in certain ways.  Photos would have to be displayed to eyewitnesses sequentially rather than in a group, and only by someone unaware of the real suspect’s identity.  Although there’s no specific mention of this in his bills, Senator Ellis also proposed to ban showups -- one-on-one identifications done soon after a crime occurs.

     No one can deny that the Senator has a righteous cause.  According to the Justice Project Texas leads the nation in the number of wrongful convictions.  Surprisingly, one of the leaders in correcting the problem is a Texas official, Dallas County District Attorney Craig Watkins, whose office has helped exonerate nineteen wrongfully convicted Texas men since 2001.  Most fell prey through misidentification.

     Traditionally, photo lineups have been administered “simultaneously.”  A photo of the suspect and (normally) five “fillers,” look-alikes not suspected of the crime, are randomly arranged on a cardboard backer and shown to the witness all at once.  Police call these “sixpacks” or “photospreads.”  When advances in DNA analysis brought to light the sobering fact that wrongful convictions were not rare, and that most were due to misidentification, reformers started pressing for changes.  Police were urged to display photos sequentially, meaning one at a time, as viewing them together allowed witnesses to compare images and choose the one that looked “most” like the suspect.  Critics also demanded that the process be “double-blind,” meaning that those administering lineups not know who the suspect is or even which photo they are setting out, thus keeping them from subtly suggesting whom to pick and whom to avoid.  Police generally resisted modifying their procedures, leading frustrated advocates to lobby legislators.  Thus far a few States (e.g., North Carolina) have incorporated the sequential, double-blind procedure into law.

     In 2006 a monkey wrench got lobbed into the mix.  In the first major study of photo lineup procedures used by real officers in real cases, conducted in Illinois, researchers concluded that the simultaneous technique was superior, proving more likely to identify perpetrators and less likely to produce mistaken ID’s (the dreaded “false positives”) than the sequential, double-blind approach.

Click here for the complete collection of wrongful conviction essays

     Whether photographic or in-person, lineups can go astray in two ways.  In a “Type 1” error witnesses simply fail to identify anyone, including the culprit, thus letting a bad guy goes free.  That’s not nearly as nasty as a “Type 2” error, in which an innocent person is mistakenly identified.  When the above report came out reformers denounced its conclusions because officers who administered photos simultaneously, in the old-fashioned way, weren’t kept ignorant of who the real suspects were.  Maybe they got better results because they subtly steered witnesses away from fillers!

     That debate still rages (for the Illinois research team’s response to the nay-sayers, click here.)  Meanwhile a noted authority on witness identification has reported little difference between lineup techniques even when giving great weight to preventing Type 2 errors.  More interestingly, he also concluded that as the probability that the real evildoer is in the lineup increases the simultaneous technique actually takes the lead in accuracy.

     But wait a minute: why wouldn’t the bad guy (or gal) be in the lineup in the first place?  Consider these possibilities:

  • Detectives have substantial information pointing them to a specific suspect, above and beyond a witness description.  They build a photo lineup around this person.
     
  • Detectives don’t have a specific someone in mind.  Assembling a physical and behavioral profile of the perpetrator from witness descriptions, they troll through the “usual suspects” looking for a fit.  Finding a likely candidate, they assemble a photo lineup around that person.

     Which scenario yields greater confidence that the identification is correct?  That’s a no-brainer.  When a witness picks out someone who’s a suspect for reasons other than their physical description the probability of error seems remote.  Difficulties mostly arise in “whodunits,” where cops have nothing concrete to go on other than a description.  Consider this all-too typical example:

    On December 11, 1980 a holdup man killed the manager of a fast-food restaurant in Orange, California.  Suspecting it was a gang member, police got numerous photos from LAPD of gang members with previous armed robbery arrests.  One, of DeWayne McKinney, was placed in a photo lineup and shown to restaurant workers.  Although McKinney was considerably shorter than the witness description, he was identified by four employees.  McKinney was convicted and got life (the prosecutor asked for a death sentence.)  He was freed nearly nineteen years later when two inmates admitted they committed the robbery and identified another prisoner as the shooter.  Two of the four witnesses who sent McKinney up the river then looked at this man’s photograph and said that, indeed, he was the killer – not McKinney.  McKinney’s lawsuit against police was settled for $1.7 million.  He married and became a wealthy entrepreneur in Hawaii.  (He died in October 2008 in a scooter accident.)

     What’s the moral to the story?  Precisely how a lineup is administered isn’t the most crucial thing to consider.  Sure, police shouldn’t be suggestive.  But if the goal is to catch criminals while minimizing the possibility of snaring the innocent, cops shouldn’t even think of staging a live lineup or showing photos unless there is substantial information linking someone to the crime.  What’s sufficiently “substantial” is a matter of judgment that comes with education, training and experience.  It’s not something that can be easily articulated in a legislative bill.

     So what about show-ups?  Recording interrogations?  Stay tuned!

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When Seeing Shouldn’t be Believing     Wrongful and Indefensible

Can We Outlaw Wrongful Convictions? (Part II)     Your Lying Eyes

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For a bibliography on the battle between simultaneous and sequential lineups click here.

For California’s futile experience in setting up a “truth” commission and establishing procedural guidelines for the police, click here.


Posted 8/17/08

MISCARRIAGES OF JUSTICE:
A ROADMAP FOR CHANGE

To prevent wrongful convictions, education is key

    The system worked exactly like it’s supposed to....The Government doesn’t owe an apology to anyone about that....This is just one of those horrible, horrible things.

     By Julius (Jay) Wachtel.  Those unforgettable remarks were made by Caddo Parish (LA) Assistant District Attorney Hugo Holland during an on-camera interview about his office’s conviction of Calvin Willis, who was cleared in 2003 by DNA after serving twenty-two years in prison for a rape that he didn’t commit.  Willis was one of eight wrongfully convicted persons featured in the groundbreaking documentary After Innocence, winner of the Special Jury Prize at the 2005 Sundance Film Festival.

     Holland’s point of view is all too common.  Although some cops and prosecutors are deeply remorseful for locking up the innocent, many others seem unfazed, often asserting that despite incontrovertible forensic evidence to the contrary the exonerated may still be guilty.  Here’s what Asst. D.A. Holland told the Baton Rouge Advocate shortly following Willis’s release:   “I'm still not convinced Calvin Willis didn't do it.  Calvin Willis is not innocent, he's just not guilty. I just don't know who did it.”

     What’s missing in this picture?  Nothing in D.A. Holland’s comments suggested that he saw in his role any greater purpose than convicting whomever the police deposit at his door.  “Beating” the defense seems to be many prosecutors’ main goal.  Here’s the last paragraph from the National District Attorney’s Association website profile of Clatsop County (OR) District Attorney Joshua Marquis:

    Josh Marquis beat famed defense attorney Gerry Spence in a 1985 juvenile proceeding, winning the equivalent of a manslaughter conviction of a 16-year-old accused of shooting a neighbor to death in a property dispute. Although the Oregon Court of Appeals reversed the conviction four years later, Marquis has a book that Spence sent him, with the inscription: “To my friend Josh Marquis, who beat me fair and square.”

     That inscription seems quite undeserved.  The book that Marquis refers to, “Smoking Gun,” Gerry Spence’s impassioned account of the boy’s defense, reports that the Oregon appellate court threw out the conviction because the D.A. failed to prove the boy’s guilt to the required standard: beyond a reasonable doubt.  (Marquis seems to take pleasure in advocating against the wrongfully convicted.  For example, see his opinion piece, criticized in an earlier post.)

     Some prosecutors and police view the process as a zero-sum game that only one side can win.  But Calvin Willis’s exoneration was a victory for everyone, as it not only freed a wrongly convicted man but alerted the authorities that a dangerous criminal was still loose.  Unfortunately, Asst. D.A. Holland didn’t agree.  “There ain't no place to go with this case,” he said.  “It's impossible to try a second person when one person has been convicted.”  That of course is simply untrue, yet the mindset it demonstrates is chilling.

     Calvin Willis’s conviction was based on three things: he lived in the neighborhood and had been inside the home in the past; his blood type (O, the most common) matched semen found on the victim’s clothes; and the victim identified his photograph.

     Yet there was plenty of exculpatory evidence.  Willis’s wife testified that he was home.  A pair of boxer shorts with a waistband ten inches too large was recovered at the scene.  The victim, a young girl, described her assailant as having a beard, while Willis had always been clean shaven.  She also couldn’t identify him in court.  And on and on.  All this notwithstanding, Willis would still be locked up if it wasn’t for the fact that the Innocence Project took up his case and proved that the matching DNA on the fingernail scrapings and the boxer shorts wasn’t his.

Click here for the complete collection of wrongful conviction essays

     Last week we made these recommendations:

  • Prosecutors and police must perceive their roles more broadly, in terms of securing justice rather than only making arrests and gaining convictions.
     
  • They must change how they actually do their work.
     
  • Finally, they need to acknowledge that serious errors will happen. Knowing that, they must implement strategies to identify and correct mistaken arrests and wrongful convictions after the fact.

     Had these precepts been followed Willis would have never been arrested, let alone charged and convicted.  In their rush to judgment the police applied poor investigative practices, and when their problem-riddled case landed on the D.A.’s lap a prosecutor capitalized on the State’s vastly superior resources to make it stick.  Once the innocent man was finally released, instead of apologizing the D.A.’s office demonstrated anew the lack of reflection and capacity for self-criticism that helped the miscarriage of justice happen in the first place.

     What’s to be done?

  • A vigorous re-education campaign at all venues, from police departments to law schools emphasizing that police and prosecutors are first and foremost guarantors of justice.  Poor policing doesn’t just devastate the wrongly accused: it’s dangerous for everyone, as for each mistaken arrest and wrongful conviction a perpetrator goes free.  That’s why care and precision in law enforcement are much more than good ideas -- they’re moral imperatives.
     
  • Coursework and instruction in the causes and prevention of miscarriages of justice should be incorporated into academy, college and university curricula and peace officer and lawyer licensing requirements.  It’s important to go beyond alerting students and practitioners to poor  investigative and forensic practices.  As “The Ten Deadly Sins” suggests, failing to understand and properly deal with workplace routines and pressures can lead even the best-trained and equipped officers and prosecutors to take dangerous shortcuts.
     
  • Finally, police and prosecutors must support vigorous quality control.  Knowing that mistakes will happen, arrests and convictions must be monitored by independent teams of investigators and prosecutors who are beholden to no one.  (A pioneering approach is underway in Dallas County.)

     No cop or prosecutor starts out their career intending to do the wrong thing.  Indeed, the very thought of arresting or convicting the innocent is repulsive, an outright contradiction of the principles that law enforcement professionals so eagerly swear to uphold.  How to recapture that spirit is the most urgent to-do for American criminal justice in the 21st. century.

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Illinois study on wrongful convictions


Posted 8/11/08

THE TEN DEADLY SINS

Why do miscarriages of justice keep happening?

     By Julius (Jay) Wachtel.  How do we address the problem of wrongful conviction?  We could analyze cases where things went astray, draw up lists of poor law enforcement practices, then tackle them one by one.  The problem with that approach is that it’s like swatting flies: it makes a mess and you’ll never kill them all.  Why not see what’s attracting them in the first place?  To that end here are ten factors that can set the stage for a miscarriage of justice:

     Overconfidence.  When Supreme Court Justice-to-be Samuel Alito was asked during his confirmation hearing if executing an innocent person was Constitutional, all he could say was that the judicial process has many built-in safeguards.  Knowing just how fallible humans are, the notion that witnesses, police, courts and juries don’t make serious mistakes seems ridiculous, yet in practice we pretend that it’s true.

     Substituting measures for goals.  If we could be certain that only the guilty are arrested and convicted, measuring success with numbers might make sense.  Yet in the real, imperfect world, where skills vary and resources are limited, evaluating agencies and individuals based on numbers of arrests and convictions and on clearance rates encourages haste and sloppiness, with predictable consequences.

     Illusion of an adversarial process.  O.J. Simpson, Michael Jackson, Robert Blake and Phil Spector could afford to hire teams of lawyers, investigators and expert witnesses, matching if not bettering the authorities blow by blow.  Most defendants can’t.  When one has nothing beyond an appointed lawyer or harried public defender their chances of discovering exculpatory evidence that police overlooked are very small.

     Rush to judgment.  As the FBI’s anthrax, Atlanta Olympics and other fiascos demonstrate, pressures to solve violent crimes can lead agencies and investigators to prematurely narrow their focus.  Concentrating investigative resources on a single target inevitably produces a lot of information.  As facts and circumstances accumulate, some can be used to construct a theory of the case that excludes other suspects, while what’s inconsistent is discarded or ignored.  That’s how a “house of cards” gets built.

     Narrowly interpreting the State’s obligations.  Prosecutors aren’t like defense attorneys, whose sole interest is the welfare of their client.  D.A.’s are supposedly there to do justice, not merely win one for the State.  Yet in example after example they have relentlessly battled on even when it was obvious that the police may have the wrong man or that someone was wrongfully convicted.

     Ignoring mistaken arrests.  Wrongful conviction gets plenty of attention.  Meanwhile few concern themselves with the underlying problem of mistaken arrest.  Not only are these events highly traumatic for those arrested, but they cause the police to stop looking, allowing the real perpetrator to continue making victims.  Worse, after an arrest takes place it may be too late to fix things: system inertia, public pressures and a “let the jury decide” mentality have allowed many innocent persons to be taken to trial.

     Absence of reflection and self-criticism.  One would think that police and prosecutors are eager to address the issue of mistaken arrest and wrongful conviction.  With a few notable exceptions, such as the new Dallas County D.A., one would be wrong.  Despite a litany of goofs, up to and including wrongful executions, the law enforcement community keeps insisting that mistakes are much too rare to justify altering current practices.  But how can we possibly know the prevalence of error when the deck is stacked against its discovery?  What’s more, protecting one’s own is so ingrained that some police and prosecutors shield unprofessional colleagues who plant evidence and use force, threats and coercion to get suspects to confess.

Click here for the complete collection of wrongful conviction essays

     Aura of invulnerability.  Even the most skilled and well-intentioned detectives and prosecutors have inadvertently caused innocents to spend decades in prison.  (Faulty eyewitness identification is a common culprit.)  Unfortunately, eyewitness ID or circumstantial evidence may be all there is.  Whether one should proceed without substantial corroboration is a critical decision that must be made in a dispassionate setting and given a lot of thought.

     Picking on the usual suspects.  Detectives faced with “whodunits” often look for suspects in the pool of past offenders.  While potentially useful, the approach can set up an innocent person for a nasty fall, particularly if they resemble the real criminal, can’t account for their whereabouts or might know or live near the victim.  It’s surprising just how readily juries will convict someone with a prior record no matter how sketchy the evidence.

     Applying poor investigative practices and junk science.  Suggestive interviews and flawed identifications have led to many wrongful convictions.  Polygraphy and investigative profiling have been thoroughly debunked yet continue to be used to screen and identify suspects.  There are also serious issues with fiber, arson, ballistics and blood-spatter evidence and, most recently, with DNA probability assessments.  Yet old habits die hard.

     Fine, you say, but now what do we do?  Three things must change:

  • Prosecutors and police must perceive their roles more broadly, in terms of securing justice rather than only making arrests and gaining convictions.
     
  • They must change how they actually do their work.
     
  • Finally, they need to acknowledge that serious errors will happen.  Knowing that, they must implement strategies to identify and correct mistaken arrests and wrongful convictions after the fact.

     More on this next week.  Stay tuned!

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Better Late Than Never II     The Tip of the Iceberg     Time or Money     NAS to CSI: Shape Up!

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Posted 8/3/08

NEAR MISSES

Six chilling examples of an imperfect criminal justice system

     By Julius (Jay) Wachtel.  Had the FBI not tried for six years to pin the 2001 anthrax attacks on an innocent man, recent revelations that maybe -- just maybe -- they’ve identified the real killer might have been better received.

     Only two months after the Justice Department agreed to pay Stephen Hatfill $5.8 million for recklessly invading his privacy (a judge commented that there was “not a scintilla of evidence” of his guilt) the Federal leak machine was already cranking out rumors that a fellow anthrax researcher, Bruce Ivins, was about to be indicted for the attacks that killed five and left America afraid to open its mail.  Unfortunately the whole story may never be known, as Ivins killed himself shortly after being released from a hospital where he was treated for a depression reportedly brought on by being in the Fed’s bullseye.

     Hatfill isn’t the only innocent soul whom the FBI has wrongly soiled as a “person of interest”.  Remember Richard Jewell?  He was the Atlanta security guard who discovered a bomb in a park during the 1996 Olympics and warned off bystanders before the device went off.   FBI agents immediately targeted Jewell, grilling him, searching his home and generally making his life miserable.  Two years later Eric Rudolph, a serial bomber, was spotted by citizens after an explosion at an abortion clinic.  He wasn’t caught until 2003.  Rudolph later pled guilty to planting pipe bombs at the Olympics and three abortion clinics, including one where an off-duty police officer was killed.  (Jewell went on to become a small-town cop and deputy sheriff.  He passed away from heart disease last year.)

     And who could forget Brandon Mayfield, the Portland attorney who was arrested as a material witness to the 2004 Madrid train bombing because FBI examiners incorrectly matched his fingerprints to latent prints found by Spanish police on a bag of unexploded detonators. Confident in their work (Mayfield happened to be Muslim and represented a suspected terrorist in a civil action), the Feds pooh-poohed Spanish analysts who insisted that the prints didn’t match.  Eventually Spain positively identified the man who really handled the explosives -- an Algerian terrorist -- and the sheepish Feebs let Mayfield go.  (He got $2 million in taxpayer cash for his troubles.)

     It’s not just the Feds who get it wrong.  Here are three examples of goofs by local cops in the writer’s home turf:

  • In January 1998 Stephanie Crowe, a 12-year old girl, was stabbed to death in her Escondido (Calif.) home.  Detectives quickly zeroed in on her 14-year old brother Michael.  After being relentlessly interrogated he confessed and implicated two friends.  Meanwhile patrol officers spotted a drifter who had been seen near the residence on the night of the murder.  He was at a laundromat, so they took some of his clothes for processing.  But detectives were so sure the boys did it that they never sent anything in.  Months later during a pre-trial hearing the judge ordered that it be done.  Sure enough, spots on the clothes turned out to be the victim’s blood.  Charges against the boys were dismissed (sorry!) and the man, a violent schizophrenic was convicted and imprisoned.
     
  • “He grabbed my hair and then he started pulling me.  And that's when I screamed. I tried to go away, and then my friends were trying to help me, and that's when he started choking me.”  In January 2004, as Eric Nordmark sat on trial in Santa Ana (Calif.) for molesting three girls whom he’d never met, he was convinced that the victims were in fact assaulted, although not by him.  But on the second day one of the three finally admitted they made it all up to avoid being punished for coming home late.  Nordmark, a homeless person, was picked out because he seemed like a good fall guy. (His accusers were convicted of juvenile offenses and placed on probation.)
     
  • In January 2006, after spending seven months in San Bernardino County (Calif.) jail, Christopher Fitzsimmons was released when DNA tests proved that he didn’t rape the 4-year old girl who accused him of assaulting her in a park. Defense investigators discovered that the girl’s mother had reported other rapes of her daughter, including two after Fitzsimmons was jailed.

     In the above examples innocent persons were forced to endure unimaginable stress, huge legal bills, loss of reputation and employment, even significant jail time.  However, unlike wrongful convictions, which have spawned a large advocacy movement, these lesser miscarriages of justice are like Rodney Dangerfield: they don’t get no respect.  Yet the root causes are the same.  And perhaps the most fundamental is shoddy investigation.

Click here for the complete collection of wrongful conviction essays

     Is police work often so poor because because FBI agents and detectives don’t get enough training?  Or is the fault more likely to be found in the workplace?  Even in the face of limited resources, detectives are expected to promptly solve serious crimes and keep clearance rates high.  Do such pressures inhibit their ability to discover the truth?

     Whatever their cause, investigative shortcomings inevitably affect prosecutors.  If police don’t inform them about gaps in a case (maybe because they don’t know they exist) they can become equally overconfident.  Prosecutors and judges are also political animals, highly attuned to public opinion and reluctant to let defendants off the hook lest they seem soft on crime.

     The truly innocent are in the worst position.  Few can afford top-notch lawyers and investigators to develop leads that police or the Feds might have ignored.  As the pitifully long and sad string of exonerations attests, poor police work that goes unchallenged has repeatedly led well-intentioned jurors to convict the innocent.  Finders of fact can only work with what they’re given, and if that’s a slipshod investigation, that’s what will have to do.

     What’s to be done?  Check back next week.

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Rush to Judgment (Part II)     Time or Money


Posted 7/6/08

A VERY RIGHTFUL CONVICTION

Crying wolf over a well-deserved conviction

     By Julius (Jay) Wachtel.  During the early morning hours of December 9, 1981, Philadelphia police officer Danny Faulkner, who was white, got into a tussle with a black man named William Cook during a traffic stop. Cook’s brother, a taxi driver who had taken on the name Mumia Abu-Jamal, happened to be parked across the street.  Shots rang out. Moments later Officer Faulkner lay on the street dying, struck five times, including a fatal shot between the eyes. Abu-Jamal was wounded once, in the chest.  Nearby lay a .38 caliber five-shot Charter Arms revolver registered in his name.  It held five empty cartridges.  William Cook came through it all unscathed.

     Abu-Jamal was tried seven months later. Neither he nor his brother testified.  The jury, which included two blacks, took three hours to convict him of first-degree murder and two more to impose the death penalty.

     Fast-forward twenty years.  After losing his State appeals, up to and including the Pennsylvania Supreme Court, Abu-Jamal got a hearing in US District Court.  It upheld his conviction but found flaws in how jurors were charged at the sentencing phase.  Its decision was upheld by a panel of the Third Circuit Court of Appeals, which ordered Pennsylvania to conduct another sentencing hearing. (It’s presently pending.)

     The case of Mumia Abu-Jamal may go down as the most bitterly disputed conviction of a black man for killing a white police officer in American history.  After more than twenty-five years the tragic episode continues to generate media attention.  It’s spawned at least three books.  In The Framing of Mumia Abu-Jamal, the convict is described as “an articulate, compassionate righter of wrongs.”  Killing Time: An Investigation into the Death Row Case of Mumia Abu-Jamal, written by a respected investigative journalist, admits that Abu-Jamal might have done it, but even if he did, it probably wasn’t first-degree murder.  In contrast, the recently released Murdered by Mumia, penned by the officer’s widow and a professional writer, declares Abu-Jamal guilty, guilty, guilty.

     Of course, there’s also a DVD.  “Mumia Abu-Jamal: A Case for Reasonable Doubt?” is an advocacy piece produced for HBO that tries its best to disguise its pro-defendant bias through droll narration and a faux-documentary style.

     Just who is Mumia Abu-Jamal?  Born in 1954 to a hardscrabble Philadelphia family, Abu-Jamal grew up during a time when many blacks, disenchanted with the slow pace of progress, were spurning mainstream civil-rights organizations such as the NAACP in favor of more radically-minded groups.  In his teens Abu-Jamal became active in the Black Panther Party.  He later worked as an on-air radio commentator, gaining attention for giving voice to MOVE, an oddball collection of anarchists who kept getting into shoot-outs with police. At the time of his arrest Abu-Jamal was married, working in radio part-time and driving a taxi.  He had no criminal record.

     Abu-Jamal’s arrest, imprisonment and death sentence for this most heinous of crimes came during a period of extreme tension between blacks and authorities.  Political activists of all shades seized upon his case as an example of the injustices that beset black America.  Civil rights organizations in the U.S. and around the world rushed to take up his cause; attorneys lined up to represent him for appeals.  It can be said without irony that for Abu-Jamal prison was in a sense a liberating experience.  Freed from the need to make a buck, the gifted intellectual became a prolific writer, authoring numerous essays and several books about race relations and the criminal justice system, including Live From Death Row (1995) and We Want Freedom: A Life in the Black Panther Party (2004). At present Abu-Jamal also does regular podcasts for Prison Radio.

     He’s a talented person, all right.  But did he murder Officer Faulkner?  In the eyes of his supporters he’s not a killer but the victim of lying cops, a biased prosecutor, a racist trial judge and indifferent appeals courts.

Click here for the complete collection of wrongful conviction essays

     In the eyes of Officer Faulkner’s former colleagues Abu-Jamal is a cop-killer who needs to die.

     Again, what’s the evidence?  This much is uncontested:

  • Abu-Jamal was found leaning against the car that his brother was driving when stopped by Officer Faulkner
     
  • A gun registered to Abu-Jamal was found near him, on the ground.  It had five spent rounds.  Officer Faulkner had been shot five times
     
  • Officer Faulkner’s gun was fired once; Abu-Jamal was hit once

     Some might say that all this, together with the fact that neither Abu-Jamal nor his brother chose to testify, leaves painfully little to the imagination.  Not according to the defense.  It would take volumes to wade through the arguments and counter-arguments, but the essence of Abu-Jamal’s original defense was not that he was innocent (remember, an accused need not prove anything) but that police so botched the investigation that it was impossible to say what actually took place.  Hence the DVD’s title: reasonable doubt.

     For example, at trial the defense argued that a bullet removed from Officer Faulkner was .44 caliber, while Abu-Jamal’s revolver was a .38.  It turns out that the .44 caliber claim was based on a note made by the medical examiner, who admitted it was a guess and that he didn’t really know how to measure caliber.  A prosecution ballistics expert not only confirmed that the bullet was a .38 but that the markings it bore had the same number of lands/grooves and twist as Abu-Jamal’s gun.  (The bullet was too deformed for further analysis.  George Fassnacht, a ballistics expert later brought in by the defense, reportedly refused to examine it.)

     Abu-Jamal’s appellate team more recently claimed that their client was framed by a cabal of corrupt cops that conspired to murder Officer Faulkner because they were afraid he would tattle about police misconduct.  Abu-Jamal has also offered his first account of what happened, which omits any mention of his gun.  How very convenient.

     Yes, we’re certain that Abu-Jamal is guilty.  But why bother posting it?  The ground’s been covered by others, and far more exhaustively.  Our concern is that if interest and advocacy groups keep recklessly burnishing the reputation of Abu-Jamal, a rightfully convicted man if there ever was one, it will work against the cause of correcting the careless policing and incompetent prosecution that have led to so many real miscarriages of justice.

     Incidentally, as this is written Dallas County, Texas announced its latest exoneration.  Its D.A. has now helped clear eighteen wrongfully convicted men since 2001.  Look for more on this in the near future.

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Documentary website     Mumnia Abu-Jamal website     Officer Daniel Faulkner website


Posted 4/20/08

THE USUAL SUSPECTS

Having a record makes it far more likely to be mistakenly arrested

     By Julius (Jay) Wachtel.  This isn’t just another story about a wrongful conviction.  No, it’s much worse than that: it’s about a D.A.’s office that doesn’t care whether they have the right guy as long as they have someone.  Who pays the tab for their fecklessness?  Read on.

     In March 1993 an Anchorage prostitute was picked up by two men, savagely attacked, dumped from a car, shot at and left for dead in a snowdrift.  She miraculously survived. A week later two men were detained for the crime.  In their car was a used condom of the kind carried by the prostitute, and a pistol that was matched to a cartridge casing left at the scene.  The driver confessed.  He said that the other assailant was not his then-passenger but a black man named William Osborne.

     Osborne’s photo was placed in a six-pack and shown to the victim.  She said that her second attacker was either Osborne or one of the others, but most likely Osborne.  Sperm from the condom was typed using a crude DNA procedure and found to be unique to one in every 6 or 7 African-American males.  Hairs were also found: two were “consistent” with Osborne, while the origin of others was unknown.  Osborne’s lawyer decided not to pursue more advanced DNA tests, as she disbelieved his claim of innocence and feared that the results could only strengthen the prosecution’s case.

     Although the victim originally described a substantially older and much larger man, Osborne was convicted and imprisoned.  For the next decade he repeatedly requested that DNA from the condom be analyzed using modern tests.  Turned away by police, prosecutors and, finally, the Alaska Supreme Court, he finally admitted his guilt.  Two years later, in June 2007, he was paroled.

     Six months later Osborne was arrested for a home invasion.  He and three codefendants are presently in jail awaiting trial.  Obviously the concept of learning a lesson is not in this man’s lexicon.

     Meanwhile Osborne’s appeals bore fruit.  In 2006 a Federal District Court determined that Alaska’s refusal to retest the DNA using modern procedures, on the defendant’s dime, violated his Constitutional rights, senselessly depriving him of the opportunity to be cleared.  Anchorage’s never-say-die D.A. appealed.  Earlier this month the Ninth Circuit affirmed the lower court, ruling that Alaska’s standards for post-conviction DNA testing were overly restrictive, essentially requiring that defendants prove their innocence in advance.  The evidence finally went in and results are expected soon.

     Admittedly, Osborne’s not one to stir sympathy.  After all, he did confess, even if it was only to qualify for parole.  Maybe he’s guilty, maybe not: why should we care whether he’s cleared?

Click here for the complete collection of wrongful conviction essays

     In 2005 Orange County (CA) resident James Ochoa was arrested for carjacking.  Ochoa, who lived nearby, was  identified by two of the victims from a photograph. A police bloodhound had also followed a scent from a baseball cap left in the vehicle to his home.  However, DNA recovered from the baseball cap and from the car’s interior was not his, and five members of his family swore he was with them when the crime occurred.  Even so, a judge threatened Ochoa, who had a drug record, with a twenty-five year term if he was convicted at trial.  Not willing to roll the dice, Ochoa pled guilty and got two years.

     Ten months later a man was arrested for another carjacking.  His DNA profile, which was routinely entered into the State database, matched the DNA profile from the Ochoa case.  The suspect confessed, exonerating Ochoa.

     In 1992 four prostitutes were murdered in South Los Angeles.  Detectives interviewed David Jones, a mentally disabled man with an IQ of 62 who was in jail for attempting to rape a prostitute.  Through persistent, manipulative questioning they got him to say that he had smoked crack with the victims and choked them when they refused to have sex.  But he denied killing anyone.  Although DNA excluded Jones, prosecutors argued that it didn’t rule him out, as prostitutes have multiple sex partners.  He was convicted by a jury and got 36 years.

     But the killings continued.  In 2001 an LAPD detective used DNA to match ten rape/murders, including the four attributed to Jones, to a man in prison for rape.  In 2004 Jones was exonerated and received a settlement of $720,000.  The real killer, Chester Turner, was convicted of the ten crimes in May 2007.

     In case after case of wrongful conviction the guilty party continued victimizing citizens while a fall guy rotted in jail.  That’s not to say that the wrongfully convicted are always nice people -- many became suspects because they already had criminal records.  They may not be worth pitying, but the public is.  When cops quit looking because they incorrectly think they already have their man (or woman), perpetrators keep perpetrating and victims multiply.

     Not caring whether the right person is locked up places innocent citizens at grave risk.  It’s more than a singular injustice: it’s a recipe for disaster.

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Guilty Until Proven Innocent     Better Late Than Never (I)     State of the Art...Not!

Taking the Bite Out of Bite Marks     Wrongful and Indefensible     False Confessions Don’t Just Happen

Rush to Judgment (Part II)     Time or Money


Posted 3/30/08

.027 RULES!

How many wrongful convictions have there been?  A lot more than what’s known!

     By Julius (Jay) Wachtel.  “Better that ten guilty persons escape than that one innocent suffer.”  Known to first-year law students as the “Blackstone ratio”, these words by legal scholar William Blackstone were intended to frame critical legal decisions within a moral context and remind prosecutors of the need to exercise restraint when invoking an admittedly imperfect process.

     Were he alive today Blackstone would be appalled that his numerical ratio has been turned on its head and used to justify serious miscarriages of justice.  Unfortunately, that’s exactly what’s happened.  Consider, for example, Supreme Court Justice Antonin Scalia’s concurring opinion in Kansas v. Marsh (no. 04-1170, 6/26/2006):

    Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum.

     Scalia was upset at an academic study on wrongful conviction authored by Samuel Gross, a law professor at the University of Michigan.  Examining 340 exonerations between 1989 and 2003, a number that they took pains to emphasize represented only a fraction of the wrongfully convicted, Mr. Gross and his colleagues concluded that these unfortunate events were not rare.  Anxious to undermine their findings, Justice Scalia referred to a New York Times opinion piece by Clatsop County, Oregon D.A. Joshua Marquis deriding Gross’ work, going so far as to insert a substantial chunk of the op-ed into the Court’s written opinion:

    Let's give the professor the benefit of the doubt: let's assume that he  understated the number of innocents by roughly a factor of 10, that instead of  340 there were 4,000 people in prison who weren't involved in the crime in any  way. During that same 15 years, there were more than 15 million felony  convictions across the country. That would make the error rate .027 percent--or,  to put it another way, a success rate of 99.973 percent.

     Leaving aside for now D.A. Marquis’ estimate of their prevalence, dividing wrongful convictions by all convictions seems an appallingly wrongheaded way to estimate the accuracy of the adjudication process.  A goodly number of felony convictions -- probably a clear majority -- are what police call “slam-dunks”.  When officers find someone standing over a dead body, holding a smoking gun, or, more realistically, listen to a spouse tearfully admit they killed their partner, and so forth, the chances of prosecuting let alone convicting the wrong person are zero.  When we choose a hospital for critical surgery, we’re not interested in its record for treating hangnails; if we’re interested in how well the system discriminates between the innocent and guilty when it really counts, cases where the evidence is essentially uncontested don’t belong in the pool.   Here’s what the formula should look like:

                                                                                             Wrongful convictions
               Accuracy of the process =  -----------------------------------------------------------
                                                                      All convictions subject to significant processing

     What constitutes “significant processing” is something for another time.  For now let’s turn to the numerator, the number of wrongful convictions.  According to the Innocence Project, which handles only DNA-based cases, there have been 215 post-conviction DNA exonerations in the U.S.  How did they come to be?  Many can be blamed on faulty eyewitness identification.  Other major causes include suggestive witness interviewing, false and coerced confessions, lying informants and junk science.  Actually, since DNA is recovered in only a small proportion of violent crime, mostly rape and murder, these exonerees were in a sense “lucky”, as once someone is adjudged guilty the burden of proof shifts to them to demonstrate their innocence, something that’s awfully hard to do without DNA.

Click here for the complete collection of wrongful conviction essays

     In a recent column a New York Times writer reported that the adjudicative system’s opacity makes it impossible to estimate the prevalence of wrongful conviction.  That hasn’t stopped those who seem determined to make the issue go away.  Only days ago D.A. Marquis posted a blog entry regurgitating his criticisms of Mr. Goss’ work, and particularly the researcher’s definition of “exoneration,” which includes (the very few) instances where a convict was retried and acquitted.  According to the D.A., “such a definition would seriously wound if not torture the true definition of exonerated, a word of great power that most people equate with actual innocence.”

     That, sadly, is how many prosecutors see it.  Happy enough to convict based on a legal construct (beyond a reasonable doubt) that has sent innocents to prison, and a few probably to death, D.A. Marquis has the cheek to demand that the few who get a second bite of the apple and are found not guilty must somehow prove themselves “factually innocent” -- meaning, to his satisfaction -- before he’ll add them to his formula’s numerator.  But not to worry, he coos, “Americans should be far more worried about the wrongfully freed than the wrongfully convicted.”

     .027 rules!

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Posted 3/2/08

BELIEVE IT...OR NOT!

Despite prosecutors’ best efforts, a wrongfully imprisoned woman gets a break

     By Julius (Jay) Wachtel.  No one’s surprised anymore when some poor soul is let out from prison after serving a decade or more for a crime they didn’t commit.  When news broke last November of the release of Lynn DeJac. 44, what seemed most noteworthy wasn’t that she spent nearly fourteen years behind bars wrongfully convicted of murdering her daughter, but that she was the first woman to be freed by DNA evidence.  Actually, her release had been bitterly opposed by the D.A., who until earlier this month held on to the fiction that DeJac was guilty even though the evidence pointing elsewhere was overwhelming.  But we’re getting ahead of the story.

     “Her mother liked good times and bad men.”  That reputation, detectives now say, was what turned jurors against DeJac.  Even in her hardscrabble Buffalo neighborhood it was considered bad form to stay out all night partying and leave 13-year old Crystallynn and 8-year old Ed to fend for themselves (their father was in prison for molesting the girl).  So when Crystallynn was found strangled to death early one morning in February 1993 suspicion quickly fell on her mother.  It didn’t help that a male neighbor who once lived with DeJac said that she didn’t deny killing the child.  Still, evidence seemed wanting until a local hoodlum awaiting trial for forgery came forward to say that DeJac confessed to him in a bar.

     There was also a spurned lover, Dennis Donohue.  DeJac had taunted him the night of the murder by kissing another man, prompting Donohue to chase them around town and at one point even hold a knife to his rival’s throat.  Prosecutors deemed Donohoe’s account of DeJac’s comings and goings sufficiently important to grant him immunity, an odd decision that would come back to haunt them years later.

     In September 1993, while DeJac was still free, a 42-year old Buffalo woman, Joan Giambra, was strangled to death.  That she had been dating Dennis Donohue raised a few eyebrows, but as there was no evidence tying him to her murder the case stalled.  Then DeJac went to trial.  Despite a lack of physical evidence she was convicted and got 25 to life.  With Crystallynn’s killing “solved” and the Giambra case gone cold the police turned to other things.

     Twelve years later Buffalo PD reinstituted its cold case squad.  DNA recovered from Giambra’s fingernails was analyzed using new, more sensitive techniques; as detectives hoped, it matched Dennis Donohue.  He was arrested for murder and jailed.  DeJac’s lawyers, assisted by the Innocence Project, demanded that Donohue’s DNA be compared against DNA found at the scene of Crystallynn’s killing.  Again, there was a match.

     DeJac was granted a hearing.  The judge -- the same who presided at her trial -- excoriated prosecutors, openly challenging their kid-gloves approach to the man whom everyone assumed killed both young Crystallynn and Giambra.  But the D.A. insisted that nothing uncovered so far proved that DeJac was innocent.  Incredulous, the judge ordered DeJac released and the charges dismissed.  The D.A. insisted he would refile.  Local media went crazy.  Even detectives got into it, publicly calling DeJac innocent, the witnesses against her liars and Donohue everything short of guilty.

Click here for the complete collection of wrongful conviction essays

     That wasn’t the end of it.  Prosecutors were now faced with a case they couldn’t possibly win.  That’s when Dr. Michael Baden, the forensic pathologist who testified that Phil Spector’s girlfriend shot herself, rode to the rescue.  Asked by the D.A. to review Crystallynn’s autopsy, the man mocked by the Buffalo News for twisting facts to suit his clients’ needs determined that she hadn’t been strangled after all!  Instead, her death was supposedly due to an overdose of cocaine.  His improbable findings were parroted by the current medical examiner, who blamed a combination of cocaine and head trauma.  Then another in Spector’s stable of experts, Dr. Werner Spitz, threw a curve, saying that he didn’t think there had been enough cocaine in Crystallynn’s system to kill her.  But after receiving “additional” evidence he supposedly changed his mind.

     On February 28, 2008 the ticking time bomb was defused.  Citing their experts’ conclusions, prosecutors dismissed the case against DeJac, not for insufficient evidence, but because no crime had been committed!  Ergo, there was no longer any need to concern oneself with Donohue, a good thing since he had been immunized.  That didn’t sit well with cold case squad detective Dennis Delano, who promptly gave the press a police crime scene video demonstrating that Crystallynn’s room had been upturned in what any reasonable person would conclude was a struggle.  Delano was promptly relieved of duty, an instance of what local reporters called a cop being punished for daring to tell the truth.  And not just any cop, but a celebrated veteran who in 2007 helped free Anthony Capozzi, a man who spent 20 years in prison for two rapes he didn’t commit.

     Donohue’s trial for killing Joan Giambra is pending.  Oh, did we say that he’s also suspected in a 1975 strangling?  But that’s a story for another day.

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Posted 1/8/08

IF IT DOESN’T FIT, YOU MUST...

Why do prosecutors resist post-conviction DNA analysis?

     By Julius (Jay) Wachtel.  ...acquit! It’s been twelve years since the late Johnnie Cochran urged a Los Angeles Superior Court jury to find O.J. Simpson not guilty of murdering ex-wife Nicole Brown and her friend Ron Goldman. Knowing full well that the blood-soaked leather glove recovered at the scene had shrunk, the wily lawyer was delighted when a prosecutor asked Simpson to pull it on -- over a protective latex glove, no less. And the rest, as they say, is history.

     Johnnie and his crew of legal beagles were also anxious to discredit LAPD’s DNA evidence. You would be too, if somebody’s blood was discovered in and near YOUR car and on YOUR socks in YOUR bedroom. Good thing for O.J. that another sharp lawyer, Barry Scheck, got an expert to testify that the blood was deposited by police through cross-contamination. Scheck went on to co-found the Innocence Project, which has used DNA analysis to exonerate more than two-hundred wrongfully convicted persons.

     Now a California prisoner, Kenneth Clair, is trying to use DNA to reverse a 1987 murder conviction.  Although the evidence that sent him up the river is circumstantial, it’s also so compelling that his own lawyer apparently doubted Clair’s innocence.  For one thing, the victim was killed only hours after Clair was released from jail for ransacking her home. For another, Clair’s ex-girlfriend swore that she saw him with items that were reportedly in the victim’s house shortly before the murder. Perhaps most damaging was a taped phone call the ladyfriend placed for detectives, in which Clair neither admitted nor denied the killing.

     After the trial some of the proof began unraveling. The ex-girlfriend took back much of what she said. A child witness insisted that the man he saw had really been white, but that the victim’s live-in boyfriend, a white motorcycle gang member, forced him to say that the suspect was black like Clair. And so on.

     Recantations and newly discovered evidence, often of doubtful veracity, aren’t unusual. What makes this case different is that recent DNA analysis excludes Clair as the donor of biological material found on the victim’s body and clothing. This the Orange County D.A. readily concedes. But he vigorously denies that it exculpates Clair. No, he didn’t deposit the DNA, but neither is there any proof that whoever did was the killer.

Click here for the complete collection of wrongful conviction essays

     Technology often leads to as many questions as answers. Sometimes it also offers a possible solution. Orange County could submit a profile of the crime scene DNA to the FBI’s databank, which contains more than four million DNA profiles of convicted felons and sex offenders. If there’s a match, that person could be investigated to determine whether they had a motive and opportunity to commit the crime. This isn’t just of trivial interest: Clair is on death row.

     But the D.A. says no, no way. Rules stipulate that the FBI databank be queried only when the perpetrator is unknown. In this case, he is not only “known” but convicted and condemned. End of story!

     Sad to say, the D.A.’s attitude isn’t surprising. In exoneration after exoneration prosecutors have forcefully resisted every step of the process, from submitting DNA for analysis, to holding hearings, to admitting evidence in court, even to releasing a clearly innocent man, all supposedly for the sake of defending the “finality” of the judicial process (and, one suspects, to avoid lawsuits and embarrassment.)

     By most accounts the facts weigh heavily against Clair. Still, the perception that justice is being served is also important. The attitude of the Orange County D.A., itself no stranger to the problem of wrongful conviction, does nothing to enhance our confidence in the criminal justice system. Indeed, it’s the precise opposite of what one would expect from public servants for whom truth should be the most important objective.

     Perhaps the wise men and women in that office are confused about why Lady Justice wears a blindfold. It’s there to assure fairness, not to make herself purposefully ignorant.

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The Tip of the Iceberg


Posted 12/19/07

YOUR LYING EYES

Poor witness ID + pressure to solve a crime = tragedy

     By Julius (Jay) Wachtel.  Inspiring stories don’t often come around, so when the Orange County (CA) Register published the first installment of a two-part series on the exploits of a Santa Ana police detective, we curled up for a good read. Then he recoiled in horror.

     No, we weren’t horrified by the crime, terrible as it was. A man driving a black, shiny 4-door Cadillac picked up a prostitute. She was driven to a secluded place, forced to perform unspeakable acts, choked nearly to death, then for good measure thrown in a dumpster. Fortunately, she survived. Amazingly, she had memorized six digits of the car’s license plate. Unfortunately, there was no match in the DMV database.

     Why did our ears curl? In horror at the investigation. In part two of the series we learn that four months after the crime a Santa Ana patrol officer caught two men having sex in a Cadillac. Although the car was white, the license plate didn’t match and the act was between members of the same gender, police placed a photo of the driver in a six-pack and showed it to the victim. Sure enough, she picked him out, and the man was arrested. At the preliminary hearing she nailed him again, this time in person. Despite the man’s protests, the judge bound him over for trial based on her identification alone.

     End of story? Thankfully, no. Three days later the DNA came back. There was no match. Although prosecutors don’t necessarily dismiss cases under such circumstances -- after all, prostitutes can have multiple sex partners -- this time they did.

     It’s a good thing. Five years later the FBI’s national databank spat out an alert that the DNA profile entered by Santa Ana police matched a DNA profile from a rape in a small Washington town. Police there had a suspect. He lived in Westminster, Calif., a city near Santa Ana. Our intrepid detective went to the man’s house. Bingo! A black 4-door Cadillac. Bingo! Its license plate was nearly identical to what the victim reported. Officers followed the car until its driver discarded a cigarette butt, then pounced on the roach. Bingo! The DNA matched. Lock him up!

     They did. Unfortunately, the suspect killed himself while out on bail. Case closed.  What if there hadn’t been DNA to exculpate the first guy? Can you say “wrongful conviction”?

     Indeed, eyewitness goofs are the leading cause of wrongful convictions. DNA has made the magnitude of the problem all too apparent. For a classic example look no further than Ronald Cotton, whose wrongful conviction for two rapes has become a case study in misidentification. (It took the innocent man eleven years to get out, but who’s counting?)

Click here for the complete collection of wrongful conviction essays

     Yes, there’s a catch. Since a perpetrator’s DNA is only present in about twenty percent of violent crime, most wrongfully convicted persons have to try to prove their innocence another way. And prove it they must: once a jury renders a verdict of guilty the burden shifts from the State to the defendant. Imagine how Rhode Island police detective Jeffrey Scott Hornoff must have felt when he was convicted for murdering his wife based on nothing more than lying about an affair. Hornoff spent six years in prison before the real killer, tortured by his conscience, stepped forward to confess. (The killer’s brother had known all along but kept quiet.)

     DNA aside, what can a cop do to reduce the risk of arresting the innocent? In the present example, the 20-year Santa Ana PD veteran spoke eloquently of his determination to find the prostitute’s killer. “She was a righteous victim, and I felt bad for her. If you read the police reports, you'd be sympathetic to her too, even if she was a prostitute.”

     What’s wrong with that? Detectives should be motivated by one thing alone: discovering the truth. Pressures from the boss or the public, desire for recognition, and yes, even sympathy for the victim can lead to hasty decisions and poor police work, with catastrophic consequences for innocent persons and for others who may be victimized because the actual perpetrator remains at large.

     No one knows that better than David Allen Jones.  A mentally retarded man with an IQ of 62, he was talked by LAPD detectives into confessing to murdering four prostitutes in 1992. Although DNA recovered from the victims was not his, Jones was nonetheless tried and convicted under the theory that his DNA was masked by the DNA of the victims’ other sexual partners. Nine years later, an LAPD detective working cold cases matched the four rape/murders attributed to Jones plus six more to another man already in prison for rape. Jones was freed and received settlements of $720,000 from Los Angeles and $74,600 from the State compensation board.

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Guilty Until Proven Innocent     Is a Case Ever Too Cold?     It’s Amateur Hour in the Southland

The Tip of the Iceberg     From Eyewitnesses to GPS     Rush to Judgment (Part II)

Can We Outlaw Wrongful Convictions?  I  II

RELATED WEBSITES, ARTICLES AND REPORTS

Eyewitness identification issues     New York Times review of eyewitness evidence issues

Five suggested techniques (NY Times)     NPR report on revamp of eyewitness ID procedures

UTEP witness ID website


Posted 11/4/07

GOVERNOR TO CCFAJ: DROP DEAD

Bowing to cops and victim groups, the Guvernator nixes justice reforms

     By Julius (Jay) Wachtel.  Bowing to heavy pressure from prosecutors, police and victims’ rights organizations, Governor Arnold Schwarzenegger vetoed the entire work product of the obscure California Commission on the Fair Administration of Justice, an organization created by the State Senate in 2004 to address concerns about wrongful convictions.

     In 2007 the CCFAJ sponsored three bills: SB 756, asking that Cal DOJ and POST develop guidelines for the administration of photo and live lineups; SB 511, requiring that police record in-station interrogations of those suspected of violent crimes; and SB 609, requiring corroboration of jailhouse informants.  Similar measures have been recommended and enacted in about a dozen States.  For example, North Carolina requires, among other things, that officers showing photo lineups take special precautions to avoid influencing witnesses and that photographs be displayed sequentially rather than as a group.  (These provisions go far beyond SB 756, which only calls for a study.)

     Echoing the shrill views of nay-sayers, the Governor called CCFAJ’s proposals unnecessary, unduly restrictive and burdensome.  Perhaps the most rabid opposition was to the lineup bill.  Opponents led by L.A. County District Attorney Steve Cooley claimed that California’s system of justice is so accurate -- 99.9999%, the proportion of all convictions not proven wrongful -- that we don’t need a bunch of do-gooders and know-nothings poking their head into the serious business of crime-fighting.

     California law requires that accomplices be corroborated, so asking the same for snitches behind bars seems perfectly reasonable.  Even so, the California State District Attorney’s Association came down hard against the measure.  Maybe they missed a report by the American Bar Association that called for exactly what the CCFAJ recommended.  Or maybe they forgot that the most notorious jailhouse liar in American history (informant is much too nice a word for this guy) was -- yes! -- a California guy, Leslie Vernon White, a career criminal who repeatedly made up bogus confessions to use against cellmates by calling around from a jail phone pretending to be a cop.

     Still not convinced?  In March 2007 the U.S. Ninth Circuit Court of Appeals ordered that a Federal civil rights lawsuit against Long Beach PD detectives and the L.A. County District Attorney proceed to trial.  The plaintiff, Thomas Goldstein, had been released in 2002 after serving twenty-four years for a murder he did not commit.  His conviction was based on a mistaken eyewitness ID and false testimony from infamous jailhouse informant Edward Fink (yes, that’s his real last name.)  Although the eyewitness later said he was pressured by police, and Fink was conclusively proven a liar, prosecutors refused to free Goldstein: as far as they were concerned he was convicted, his conviction was upheld on appeal, and that was that!  It took a lengthy investigation by a Federal magistrate and concurrence by a District judge and a three-judge Federal panel to finally force the innocent man’s release.

Click here for the complete collection of wrongful conviction essays

     And here we come to the heart of the matter.  Personal interests aside, some judges and prosecutors are so in thrall to process that they resist any challenges to the “finality” of judgments -- even those clearly based on lies.  How high does the misplaced confidence go?  During his confirmation hearings Supreme Court Justice (then nominee) Samuel Alito repeatedly refused to agree that wrongfully executing someone was unconstitutional.  The best he could do was to say “it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt.”  In other words, once convicted, forever damned.  His response, or rather, non-response, caught Senator Pat Leahy, himself a former prosecutor, completely off guard.  Such attitudes help explain why, in a 5-4 ruling, the U.S. Supreme Court overruled a last minute stay halting the planned execution of Thomas Thompson.  (He was gassed on schedule.)  Tompson’s alleged crime?  An Orange County rape/murder.  The key evidence?  Testimony of two jailhouse informants, both declared liars by the appeals court.

     Oh, yes.  One of the informants was Edward Fink.

     Post-adjudication claims of innocence must meet exceedingly high standards.  It’s not enough to show that key trial evidence was false or mistaken, or that the remaining evidence clearly doesn’t meet the “beyond a reasonable doubt” standard required to convict in the first place. To be heard a petitioner must present newly-discovered, reliable evidence that demonstrates it is more likely than not that they are factually innocent.  Proving a negative -- that one is not guilty -- is tough.  Most who succeed do so with  DNA; for example, by showing that semen or pubic hairs are not theirs.  But DNA is only recovered in twenty percent of violent crimes, usually rapes.  Even where key trial evidence has been completely discredited (e.g., West Memphis Three, L.A.’s Bruce Lisker), the absence of extraordinary proof of innocence such as DNA means that convicted persons are out of luck.

     Rabid opposition from law enforcement and victim rights organizations has overwhelmed all efforts at reform.  What can be done?  Most convicted persons are poor.  Those with plausible claims of innocence should be given funds for lawyers, investigators and forensic experts.  Petitioners must not be forced to prove a negative; to be freed it  should suffice that, considering all the evidence in the light of what is presently known, one would not be convicted anew.  Grand juries can take on some of the burden of providing post-conviction relief.  That was the approach in the 2004 murder of Amy Yates where jurors impaneled long after the trial exonerated one falsely convicted youth and indicted another.  And since wrongful convictions are often traced back to mistakes by police and prosecutors, they must accept responsibility as well, developing practices and instituting training programs that greatly improve the accuracy of their work.

     Confidence in American justice is starting to fray.  While we can’t expect absolute perfection, the many miscarriages of justice brought to light by innocence projects around the country suggest that preventive and remedial measures are urgently in order.  The next victim of flawed justice could be you.

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