Daily Archives: November 15, 2009

Another conviction reversed: Exhibit n for no prosecutorial immunity

In what is becoming routine, another conviction was reversed this past week in New York, this one too based on the eyewitness testimony of 5 individuals. This, though, isn’t the usual case of mistaken ID nor is it a DNA exoneration.

Convicted of murder in 1992, Fernando Bermudez has wrongly been in jail for 17 years. Interestingly, it took only a year from his conviction for the eyewitnesses to recant citing police and prosecutorial pressure and manipulation:

A year after Mr. Bermudez’s 1992 conviction, five witnesses who had identified him as the killer at trial recanted, saying in sworn affidavits that, they were coerced or manipulated by the police and prosecutors to identify Mr. Bermudez as the killer. Several of those witnesses reiterated their recantations in September at a hearing before Justice Cataldo.

Not only that, but all 5 testified at the most recent hearing that they viewed his mugshot as a group and discussed his likeness to the killer: a big no-no in photo array identifications. All the science in this field shows that we have a tendency to compare pictures to each other and to what we think the suspect looks like and pick the one that most closely resembles the person sought to be identified, instead of picking the person who actually is. If you don’t believe me, try this simple test from expert Gary Wells‘ website.

In his 79-page decision, Justice Cataldo wrote that Mr. Bermudez’s rights were violated because the police had allowed prosecution witnesses to view Mr. Bermudez’s mug shot as a group and to discuss his resemblance to the killer. Justice Cataldo also found that the prosecution should have known before sentencing that one of its cooperating witnesses, Efraim Lopez — a teenager whom Mr. Blount had punched at the club — had given false testimony.

But that doesn’t deter prosecutors. In fact, they’re so wedded to the notion that once a conviction is obtained it must be defended at all costs – and certainly one where the reversal is based in part on misbehavior by one of their own – that they utter nonsense like the following:

Life on the inside: an inmate’s view

For two months now, the Ann Arbor chronicle has been publishing the Washtenaw Jail Diary, a series of chapters by a former inmate at that jail, chronicling his life behind bars and his experiences. Interestingly, the content of the chapters were originally published as tweets, but later taken down and deleted. This unnamed inmate is now in the process of writing a book, it seems, while at the same time publishing these stories in the newspaper. They’re up to the third chapter and you can find all the installments here.

The latest installment, Chapter 3, is of particular interest to me, because in it he writes about “The Public Pretender”:

I still cannot decide if I had decent representation within the parameters of the “McJustice” doled out via the overworked Public Defender’s office and the backroom horse trading that goes on. If I could have afforded a real lawyer, one with “connections,” would I have done as much jail time? I do not know the answer to that. I tend to think that I would have gone free sooner. But I will never know for sure.

I am taken from my block and brought to a room back near the dreaded holding tanks, meeting with the person with whom I am to entrust my life. And here, in front of me, is Clarence fucking Darrow, himself – all bluster and a bit cartoonish, reveling, it seems to me, in being the center of attention. He is surrounded by assistants, interns, law students – almost all of whom, I am strangely curious to discover, are attractive young women.

The Pretender tells me that I am not the usual kind of person he represents, since I am apparently well-spoken and educated. But that does not prevent him from launching into street lingo, some of which I ask him to translate for me. He speaks this way out of habit, I am guessing, to try to win the trust of his usual crop of clients.

I have mixed feelings about my Pretender. Do I want what appears to me to be a snake oil salesman representing my interests in these felony cases? Maybe this is exactly the kind of person I need on my side. The lawyer in my misdemeanor cases seemed much too timid for me – in fact, agreeing with the prosecutor in court.

But there’s more. For instance, this handy guide to writing a successful “speech to the judge”:

Major ingredients for a successful speech to a judge include:

1. Apologize to the court, to the community and to any victims harmed and admit your mistakes.
2. Talk about what you are doing while in jail to further your education, help the jail community or help control destructive behavior (AA, Alternatives to Domestic Abuse, GED, etc.).
3. Discuss your job possibilities after you return to the community and the support system of family and friends that awaits you.
4. Mention family members, teachers, members of the community who might have written letters to the judge on your behalf.

Do not:

1. Insist you are innocent.
2. Tell a hard-luck story about yourself and your family.
3. Fail to address the court clearly and with respect.

Title bout in GA: death penalty vs. no money

This seems to have been a week of heavyweight fights.  Last night some guy named Pacquaio rearranged the face of some dude named Cotto and earlier in the week, in the state of “even Brian Nichols didn’t get death”, aka Georgia, the well oiled machinery of state sponsored murder took on the almighty dollar.

Yes, that was a very convoluted way of saying that the GA Supreme Court heard oral argument in the case of Jamie Ryan Weis, who’s sat in pre-trial confinement for 4 years awaiting a death penalty trial. For the first two years of his confinement, he didn’t even have counsel. The reason? GA has no money. Not for him and not for the 70 or so other capital defendants.

The state high court’s decision, expected next year, will set an important precedent. Numerous death-penalty trials across the state have been delayed because there has been no money to pay defense lawyers, investigators, expert witnesses and mitigation specialists.

In recent weeks, the state Office of the Capital Defender has not had enough lawyers to fully defend all of the approximately 70 death cases pending statewide. This includes two defendants charged in the July 26 slaying in Atlanta of former pro boxing champion Vernon Forrest.

Georgia court rules call for a capital defendant to be represented by two experienced attorneys. But because of overwhelming case loads, the capital defender office has been able to provide only one lawyer each for Charman Sinkfield and Jquante Crews, two of three men charged with Forrest’s murder.

Not only “Georgia court rules”, but ABA standards as well require two lawyers on each capital case. Anything but is sure to result in a reversal. So why doesn’t Georgia have any money to pay for an adequate defense? I’m glad you asked: