Archive for November 11, 2010
Unethical beyond a reasonable doubt?
Nov 11th
Rule 3.8 of the Connecticut Rules of Professional Conduct (and the ABA Model Rules) provides, in relevant part:
Rule 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(1) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
This Model Rule has been adopted by almost every state other than NY and CA. The United States Supreme Court has made it clear that:
In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.
Bordenkircher v. Hayes. The Connecticut Supreme Court echoed much of the same in Massameno v. Statewide Grievance Committee:
Prosecutors have enormous discretion in deciding which citizens should be prosecuted and for what charges they are to be held accountable.
So it is undisputed that in order for a prosecutor to behave unethically, he would have to persist in a prosecution despite “knowing” that there is no probable cause. Is the corollary then true? That as long as a prosecutor knows that there is that bare minimum probable cause, persisting in an otherwise sure-to-be-doomed prosecution is ethical?
Best lineup ever
Nov 11th
And by that I mean worst lineup ever. Is it any wonder that people get wrongfully convicted because of police tactics like this?
can you spot the perp? hint: he's the one who's not smiling
Yes, that is the defendant in a headlock in a police lineup full of other police officers who are smiling. This is not a recreation or a photoshop job. This. Actually. Happened. And as a result, Ivan Henry spent 27 years in a British Columbia prison for 8 rapes he did not commit. The culprit once again? Eyewitness identification:
Henry was convicted solely on identification by the victims.
The appeal court found the identification was weak and the trial judge erred by instructing the jurors that they could infer consciousness of guilt from the resistance of Henry to participation in the line-up conducted by police on May 12, 1982.
The appeal court considered a shocking photo of the police line-up, which showed three police officers, dressed in civilian clothes, restraining Henry, who was in a head lock.
The other people in the line-up were believed to be police officers, who were all smiling.
“If this had been disclosed, it would have been a gold mine for a defence lawyer,” Appeal Court Justice Richard Low said of the photo during Henry’s appeal hearing last June, when the court reserved judgment.
It’s a wonder that courts across the country still refuse to accept that eyewitness identification as the sole basis for a conviction is not very reliable. The study of and the science behind eyewitness misidentifications is so well developed and is entering the mainstream consciousness to such an extent that courts will be unable to ignore its realities much longer. Connecticut came close in recent months, without actually taking that big step.
Henry’s case highlights another common problem with wrongful convictions. It is often said that the 250+ exonerations touted by the Innocence Project is just the tip of the iceberg. There are many. many more innocent people behind bars who cannot be helped, because in most cases, there is no physical evidence to test. DNA retention policies are terrible and in some cases there is willful destruction of the testable material. Henry may have been released sooner, but for the same problem:
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