Sometimes, justice requires a bit of luck

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JamesWalder Joseph Frey has spent a lot of time in jail. Some of it for crimes he committed and a lot of it for one crime he always said he didn’t. In 1991, he was fingered as the suspect in a brutal break-in and rape of a student at knifepoint. Just this week, a judge in Wisconsin reversed his conviction. But, in 1994:

He was convicted on Feb. 2, 1994, by a Winnebago County jury despite his claims of innocence, the victim’s dubious identification of him as the attacker, the lack of a DNA match and destruction by an Oshkosh Police detective of important evidence before the trial.

That old evidence included a jailhouse informant, the victim’s identification of Frey in a “live in-person lineup,” prior sexual assault charges and DNA results from the victim’s bedsheet that excluded Frey as the source.

The holy grail of wrongful convictions: 1) A misidentification; 2) DNA that excludes the defendant; 3) Evidence getting mysteriously destroyed by a police department; 4) Tunnel vision; 5) A jailhouse informant.

The “identification” was done by police in a “simultaneous” manner – a practice now frowned upon because it results in people picking the person who “looks most like” rather than “who is” the suspect. They also placed the same person in more than one lineup, which would signal to anyone with a functioning brain cell that the person who repeatedly showed up was one that police believed did the crime.

And there were other problems. The Innocence Project said the victim identified at least two other men before saying that Frey “looked similar” to her attacker.

There was DNA tested before trial and that DNA (stains from the bedsheet) excluded Frey, but the prosecutor argued – and the jury believed – that those stains could just be leftover from consensual sexual activity the victim had. The news report doesn’t reveal whether that was followed up with the victim at trial or compared to the DNA of any lover she might have had to confirm that.

But the real kickers here are the actions of the police department and the tunnel vision they tend to develop when they have a suspect in their sights. Confirmation bias kicks in and the police start viewing all the evidence through the lens of confirming their suspicion, rather than looking at it neutrally and seeing where it goes. Oh, and it would’ve been nice if, you know, they hadn’t destroyed evidence before the trial:

After those results were received — and before trial — all of the physical evidence in the case reportedly was destroyed, according to trial testimony of then-Oshkosh Detective Phil Charley, who acknowledged disposing of the items but “could not recall anyone ordering him to destroy the evidence,” the Innocence Project said.

Maybe there was a shortage of space. In Phil Charley’s brain. But wait, there’s more:

“In addition to the improper destruction of evidence,” the motion for DNA testing said, “all of the police documents, including police reports, inventory reports, submission and transmittal forms, testing requests and results and chains of custody, were destroyed by the (Oshkosh Police Department).”  “As a result, it is unclear what evidence was originally collected, identified for testing, or remained after destruction.”

I can’t think of one single legitimate reason to destroy these items, especially at or near the time of trial. Maybe 20 years down the road, after legal challenges have been disposed of, maybe. But police departments have strict policies about this. Because you never know, when one day 20 years down the road, DNA testing implicates someone else. What’s that you say? Is that what happened here?

Frey’s chance at exoneration came after a Winnebago County court clerk discovered a scrap of bedsheet left over from the “improper” destruction of the physical evidence by a now-retired Oshkosh Police detective before Frey’s 1994 trial, according to the Innocence Project’s October motion seeking DNA testing.

A scrap. Of a bedsheet. In a clerk’s office. That’s what needed to happen to save Frey. Not all the dubious evidence and the shenanigans that I outlined above. All of that is what got him convicted. It took a random bedsheet scrap that somehow escaped the purge of Detective Fife Charley.

And it wasn’t just that the bedsheet had DNA that excluded Frey. They already knew that. It was only when the DNA evidence matched that of another convicted rapist, who prior to his death in 2008, may have tried to confess to this crime, that the prosecutor was willing to concede that, okay, maybe, perhaps, if you squint really hard, they had the wrong guy.

Finality is such a powerful thing that even the most level headed and logical people get so entrenched in their positions. “It has been decided”, they say, “so mere doubt cannot and will not be permitted to give us doubts about the veracity of our decisions. We must be slapped repeatedly in the face to awaken us from our stupor”.

It was sheer dumb luck that brought Joseph Frey to the precipice of exoneration and freedom. How many are sitting in jail right now, convicted on this evidence, without that scrap of a bedsheet? How many are sitting in jail right now, because prosecutors are convinced, despite evidence to the contrary, that they got the right guy all those years ago? How many are sitting in jail right now, because prosecutors refuse to test DNA evidence, because it might prove they got the wrong guy? Hubris is a powerful thing and almost never results in any good.

How many are sitting in jail right now without any DNA out there to support their innocence, convicted based on tainted, faulty identifications, gung-ho cops and juries that can’t convict fast enough because criminals. Isn’t that most frightening thing of all? That there are innocent people in jail right now without any way for the world to know that they exist. Without any way of proving that they didn’t do it. Because they didn’t get lucky. Should the justice system require luck? Or should it require proof?

So the next time you read a story about an obviously guilty guy, think for a second. The next time you’re on a jury, think long and hard. Are you convinced? Is there any doubt? Or are you going to say good enough and figure maybe he’ll get lucky down the road?

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Frey was represented in his motion for a new trial by a dear personal friend of mine, a law professor at the University of Wisconsin Law School, Tricia Bushnell. I know the volume of hard work that she and her students did in this case and words cannot ever justify the satisfaction that she must be feeling, so I can only say congratulations and that maybe now you should take a nap, Tricia.

 

 

 

 

 

 

 

 

 

 

A second chance for juveniles

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Think about when you were 14, 15 or even 18 years old. You may have been the jock, the smartypants, the nerd, the weirdo, the hot chick, the best friend or home schooled. Think about the worst thing you did those years.

Now imagine that the worst thing you did – if it was legal – was deemed inappropriate by society. Inappropriate to the tune of 20 years in jail or 30 years or 40 or 60. Or just remember that time you bullied someone or you stole a lipstick or you made fun of a teacher or you took your dad’s car and went for a joyride or you made up stories about that girl because she wouldn’t make out with you.

Now, thinking about yourself, do you cringe? Have you spent time over the years wondering who that kid was and being glad that you’re not that anymore? Have you spent any time thinking “boy, I was a douche back then, but I’ve grown and changed?”

We all have. The only difference is that some of us are stuck in jail for extremely long sentences for things we did when we were barely out of middle school. CT mandates that all children above the age of fourteen, charged with serious felonies, are automatically treated as adults and exposed to adult sentences, ranging from maximums of 20 years to 60 years. And there are about 170 people who are currently serving such sentences for things they did between 14-17.

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Convicted in the blink of an eye

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You’d think this was a post about the figurative blink of an eye; a lament about the need for speed in the criminal justice system and the rush to judgment. That’s another post, but that’s not this. This is about the recently concluded trial of Ricardo Woods, an Ohio man, who was convicted of the murder of David Chandler because Chandler’s identification of Woods was admitted into evidence at the trial.

You guessed it: the identification was Chandler blinking his eyes in a hospital bed. Chandler then died and wasn’t available at trial, so the prosecution sought to enter the video of his interview at the  trial. The video is here, courtesy the Kentucky Post: Continue reading →

“A deliberate pattern of improper conduct”

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The long lament has been the unaccountability of prosecutors in the criminal justice system: they are given broad powers and responsibilities and then shielded at every turn from being held accountable for the myriad, tiny abuses that are committed on a fairly regular basis. Just last week we were all mourning the ineffectual Brady v. Maryland. We all screamed when Connick was announced, holding that prosecutors weren’t financially liable for misconduct impropriety. We all rolled our eyes when they changed misconduct to impropriety. We all roll our eyes when courts point out impropriety but refuse to name the prosecutors who committed that misconduct. But what isn’t at dispute is that prosecutors have a special role to play in the criminal justice system; their responsibilities are elevated and the standards they should be held to are higher.

A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at  stake in the ordinary civil case.They involve significant public interests. . . . [T]he criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority.

Duncan v. Louisiana, 391 U.S. 145.

When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and  to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury.

State v.Moore, 69 Conn. App.  117, 130.

So believe me when I say that what the Connecticut Appellate Court did yesterday was truly extraordinary. It has happened maybe once or twice in the last decade or perhaps even two.

The opinion in State v. Santiago [PDF] starts thusly:

The defendant, Victor Santiago,appeals  from his conviction of felony murder in violation of  General Statutes § 53a-54c and murder in violation of General Statutes § 53a-54a, claiming that he was deprived of his due process right to a fair trial due to improper comments made by the prosecutor, Terence D. Mariani, Jr., during his closing and rebuttal arguments to the jury.

He also asks this court to invoke its  inherent supervisory authority over the administration  of justice to reverse his conviction in light of Mariani’s improper comments made during his closing argument to the jury and his deliberate pattern of making such comments in numerous other cases.

Because we conclude that Mariani has engaged in a deliberate pattern of improper conduct in this case and others, and he remains undeterred by pronouncements by this court and our Supreme Court that his conduct was improper, we believe that nothing short of reversal will have the effect of deterring him.

We thus reverse the defendant’s  judgment of conviction and remand the case for a  new trial.

Unheard of. Just simply unheard of. Not only does the opinion name the prosecutor, but also calls his conduct a “deliberate pattern”.

Judge Sheldon, who wrote the opinion, is absolutely correct: the only just penalty for repeated Constitutional violations and wanton disregard for trial and appellate court orders and cautions and reprimands is to reverse the conviction. What else can be done to drive home the message that prosecutors are not free to abuse the law and that the rules apply to them, too. If they are to be given a license to disregard Due Process with ease, then how can one with a straight face then hold defendants and defense attorneys to much higher standards?

Mariani did everything in this case he isn’t supposed to: he played on the jurors’ sympathies for the victim and witness, he demonized the defendant and his family and equated the prosecutor’s job with that of the jury’s. Each by itself would be a reversible Due Process violation. The court then lists 8 other cases in which Mariani’s conduct was censured by the Appellate or Supreme Court and he was admonished not to do so again. And yet he persisted.

It’s not that he’s not smart or that he doesn’t understand it: the only explanation can be that he just doesn’t care. To repeatedly, continually disregard instructions from judges and appellate courts about the impropriety of one’s actions can only signal that the subject thinks himself or herself to be above the law. This clearly got to the Court, which reasoned:

Mariani made several improper comments in this case, a felony murder case, and, in so doing, jeopardized the constitutionality of the trial proceedings. More troublesome, however, is his repeated and deliberate use of improper argument throughout other cases. Despite the fact that this court and our Supreme Court have repeatedly determined that Mariani has exceeded the  bounds of proper conduct, he continues to do so. We thus conclude, as our Supreme Court did in Payne, that “nothing short of reversal will deter similar misconduct in the future.” Id., 466.

Stunning, unprecedented and well deserved. The only question remains is whether the Supreme Court will reverse, because you know, criminals.

Van Poyck: FL’s bizarre death penalty farce continues

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Van Poyck, the poster child for the batshit insane death penalty doings in Florida is one step closer to a June 12 execution, armed with attorneys that don’t know or have time for his case. Last time we checked in, lawyers had filed an emergency appeal with the Florida Supreme Court on Friday, May 17, arguing that they had neither the time, nor the knowledge, nor the expertise to represent Van Poyck in this expedited timeframe. The Florida Supreme Court was expected to rule late Friday.

It didn’t. It waited all weekend to rule late Monday. In what the Palm Beach Post calls “a deeply divided” ruling, the Court said – 4-3 naturally – that the execution would remain on track, although the deadlines for various filings were extended by a day here or there. The majority wrote a two page opinion stating:

“We deny the request for a stay of Mr. Van Poyck’s execution,” Justices Ricky Polston, R. Fred Lewis, Charles Canady and Jorge Labarga wrote in a terse two-page ruling. “Noticeably absent from these recent (court) filings is any substantive reason for granting a stay.”

I’ll give you a substantive reason: the Fifth and Sixth Amendments. But in their bloodlust and desire for finality, due process and the right to counsel are mere obstacles on what must be an ever shortening path.

This obsession with finality and speedy finality has always troubled me. Especially in cases where the sentence is irreversible, like death. It is often said by those with the taste of blood in their mouth that delay is a tactic used by the defense and every day the client spends alive is a victory. I found that argument most curious: for one, I’d rather be on the side that regards the extension of another individual’s life for even a day as a good thing and second, I’d rather be on the side that ensures that we proceed cautiously, carefully and certainly.

In an apparent effort to accommodate the three attorneys, the high court extended the deadlines of when they must file various appeals.

Instead of this Wednesday, Burton has until May 29 to rule on whatever motions are filed. Possible oral arguments before the Florida Supreme Court are scheduled for June 6 instead of June 5. That would leave a week to launch appeals in federal court in hopes of stopping what would be the first execution for a Palm Beach County murder in 21 years.

The justices, however, said they didn’t want to hear from any outsiders. They rejected requests from the 1,700-member Florida Association of Criminal Defense Lawyers and Sandy D’Alemberte to weigh in. On Friday, both the association and D’Alemberte, a former state lawmaker and past president and law school dean of Florida State University, said they wanted to explain problems with the death penalty process that has led to confusion in Van Poyck’s case.

What does it say when an institution (or perhaps institutions if you add Congress) that is designed to serve the people - all people – acts with such hubris and disdain for the voices of those very people? Have our laws become the playground of the present whims of 5 or 7 or 9?

What’s even more puzzling is that the defense attorneys, two of whom have never handled a death penalty appeal before and one who doesn’t know this client from a hole in the wall, asked for merely a 30 day extension. 30 days to ensure that Constitutional representation was provided. And apparently that’s too much. I guess once you have a taste for killing, it’s hard to let go. Isn’t that what they say about defendants? The only difference is that one murder is state sponsored and the other isn’t.

 

If I smoke a joint in a forest, have I smoked one at all?

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I'm not as think as you stoned I am

I’m not as think as you stoned I am

Judge Kenneth Post of Michigan will start a 30-day suspension this Wednesday, having been reprimanded for

a terse exchange with Montcalm County attorney Scott Millard over whether Millard’s client needed to answer questions about recent drug use. Post was asking the questions to make sure Millard’s client would not test “dirty” the next time he gave a drug-testing sample.

Millard interjected and wouldn’t permit his client to respond to these questions on the grounds that the answers would incriminate him and thus violate his Fifth Amendment privilege. Post wasn’t having any of it. He was downright rude to Millard as this transcript shows:

JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?

MILLARD: (My client) is going to stand mute to that question, your honor.

POST:  He’s not going to stand mute. He’s either going to answer the question or I’m going to remand him to jail.

[...]

MILLARD: (My client) has a 5th Amendment right.

POST: Counsel, I’m setting bond. There’s two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I’ll remand him to jail until such time as he’s clean and then we’ll go from there.

MILLARD: And I -

POST: Would you please be quiet? I really appreciate that. Thank you.

MILLARD: I apologize.

POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.

MILLARD: Your honor, (my client) has a 5th Amendment -

POST: I’m not charging him with using controlled substance, Counsel. He’s not charged with that charge. I’m interested in getting a clean, honest bond response. Now, if you don’t want to do that, you can leave. Your call.

And on and on. Finally, perhaps sick of hearing Millard say Fifth Amendment, Post held him in contempt and ordered him remanded to custody. The Michigan Supreme Court affirmed [PDF] the grievance finding of 30 days’ suspension for violating judicial ethics. Which is fine, I suppose. I don’t have an opinion on this either way, except that intolerance of the law and disrespect in the courtroom cannot and should not be tolerated no matter the source.

What I want to know is this: did the defendant have a 5th Amendment privilege in that circumstance? Or would any prosecution be barred by corpus delicti?

Another example: if I were to go to Officer Friendly patrolling my street as soon as I’m done writing this post and say “Hello Officer Friendly, I just wanted you to know that last week I snorted coke off a hooker’s belly”, could he arrest me? What if I said I’d driven drunk a month ago? I’ve clearly admitted to a violation of a criminal statute, but can I be arrested and prosecuted?

Is there a difference between incriminating myself and not being able to be charged with a crime? Have I incriminated myself (in the legal sense) while avoiding prosecution?

The principle of corpus delicti means that I cannot be prosecuted based solely on my confession; there must be independent evidence that a crime has occurred. Assuming that was the case in the excerpt above, did Millard’s client have a Fifth Amendment privilege?

This law school final counts for half of your grade. Govern yourself accordingly.