Archive for April 27, 2007
A brief history of skepticism
Apr 27th
EyeID has a fantastic follow-up post to the post discussing the Judge Hoffman editorial, entitled “Stages of denial: The numbers are on our side too“. You must read it. It traces the history of skepticism of wrongful convictions and the shifting arguments employed to counter the growing evidence that wrongful convictions do occur. Here’s a brief glimpse:
In the pre-DNA era, they disdainfully dismissed works like the Radelet study — a pre-DNA study that concluded that 23 innocent capital defendants had been executed in the past 85 years — pointing to its supposed flaws such as its reliance on “one-sided” materials like newspaper articles.Then the DNA exonerations came. And it was good. But not enough for the skeptics. At that point, it obviously became impossible for any rational person to deny that the criminal justice system convicted the wrong person. But when reformers then began to demand that the system take simple steps to fix what was now an identified and undeniable problem — by, for example, reforming demonstrable problems in eyewitness identification procedures — the skeptics began to question the scope of the problem, now demanding that reformers not only demonstrate the existence of the problem and its causes, but also its precise scope.
Read the whole post. Absolutely terrific! Bravo! What a blog!
Previous coverage:
Technorati Tags: innocence, wrongful conviction
The Innocence Myth
Apr 27th
Judge Morris B. Hoffman has another editorial. After publishing the results of a study in January that showed that defendants with private attorneys got better results than those represented by public defenders, today he publishes an editorial in the WSJ that calls innocence a myth. He opens with:
You must also have somehow managed to avoid the increasingly shrill polemics issuing, daily it seems, from our nation’s law schools and their “innocence projects,” which have spent the last 20 years trying to paint a picture of our criminal justice system so dismal that a rightful conviction seems the exception and not the rule.
Notice the use of quotes around innocence projects. Soon thereafter, he cuts to the chase. He asks about the error rate! ERROR RATE!. He even quotes Blackstone’s Ratio. EyeID tackles this wonderfully:
But back to this WSJ article. Hoffman goes on to inquire about the actual rate of innocence. Maybe, after all, these “innocence advocates” and the “liturgies that have grown up around them” (!) are worshipping a false idol, the WSJ author/judge implies. Apparently out to get these pesky innocence proselytizers, who “are strangely silent when it comes to that question” of the actual innocence rate, Hoffman tries to redirect the dialogue to a question of the error rate, which is what really matters “in imperfect complex systems.” Hoffman appears to imply that if the “error rate” — that is, the rate at which innocent people are incarcerated and in some cases, possibly executed — is within an acceptable range, then the innocence projects — which he belittles as both “mythmakers” and “innocence merchants” — are in a tizzy over nothing.But this brings us back to the Blackstone ratio, and a fundamental clash of worldviews that I think is at the heart of this disagreement. 200 innocent people incarcerated for a combined total of 2,475 years in prison is not an “acceptable error rate,” no matter the ratio of wrongfully convicted to “rightfully” convicted. And obviously the work of the Cardozo Innocence Project, and the battalions of others committed to the same cause, do not represent the entirety of the problem. Other innocents remain in prison, and new innocents continue to be put in prison.
The “mythmakers” are silent on the question of the “actual innocence rate” because the problem of innocent people being deprived of their liberty is not a statistical problem; it is a moral problem. This is exactly what Ben Franklin meant when he said that “it is better 100 guilty Persons should escape than that one innocent Person should suffer”: human liberty is not reducible to a mundane statistical formulation. Innocence advocates are silent on the question of the actual innocence rate not because they fear the answer, but because it is fundamentally the wrong question.
Sacre bleu!
Technorati Tags: innocence, wrongful conviction
Defense expert busted for possession of p-rn in course of duty
Apr 27th
Corey Yung at SexCrimes points out an interesting Ohio opinion, where the defendant’s Motion to Dismiss the indictment was upheld by an appellate court. The defendant had been charged with various counts of possession of child p-rnography. The court appointed a digital imaging expert to assist in his defense. The court ordered that the expert be immunized from any prosecution for possession of these materials (which were to be obtained from the prosecutor’s office) and be allowed to re-produce these materials and analyze them.
All well and good. Unfortunately, shortly thereafter (and it is really curious as to how or why this happened),
On June 24, 2005, the Federal Bureau of Investigation (“FBIâ€) executed a search warrant on [expert]’s residence. The FBI seized [expert]’s computer and several compact discs. Included in the seized material was computer equipment containing potential exhibits [expert] had created for trial and the compact disc containing the images at issue in this matter. An affidavit submitted in support of the search warrant alleged [expert] violated Section 2252A, Title 18, U.S.Code. This federal statute does not contain the exemption for a “proper person†using the material for a bona fide purpose similar to the exemptions contained in the Ohio statutes.
Absolutely bizarre. A quick Lexis search shows that Connecticut does have an “exemption”, if you will. The statute (53a-196g) actually creates a category of affirmative defenses.
In any prosecution for a violation of section 53a-196d, 53a-196e or 53a-196f, it shall be an affirmative defense that (2) the defendant possessed a visual depiction of a nude person under sixteen years of age for a bona fide artistic, medical, scientific, educational, religious, governmental or judicial purpose.
I have never heard of anyone in Connecticut being prosecuted for something similar. However, I was unable to find a similar exemption in the drug statutes. What about other states? Do you have similar exemptions?
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