The only incentive – financial loss – was vilely struck down by SCOTUS in a decision (Harry “I’m the singer’s father” Connick v. Thompson) authored by Justice Thomas (who, in the words of one commentator, just doesn’t give a fuck). And Thomas seems to have a 20 year love affair with the crooner’s father, as evidenced by his joining the dissent in Kyles v. Whitley, another case highlighting the failure of Connick’s office to turn over exculpatory material, the aforementioned Connick v. Thompson, and his lone dissent in yesterday’s Smith v. Cain [PDF] – another Connick special.

Smith was about the prosecutor’s failure to turn over police notes that significantly undermined the testimony of the only witness against Smith. From this Slate article:

notes from the detective stating that the eyewitness said on the night of the murder that he “could not … supply a description of the perpetrators other then [sic] they were black males.” Again, five days after the crime, the ostensible eyewitness said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The detective wrote these statements down—and then wrote down “Could not ID.” It’s understandable that the eyewitness was, as he later said, “too scared to look at anybody” under the circumstances. But usually police know that a person who didn’t see a face is not an eyewitness at all.

And this was a “witness” who went on to testify with absolute conviction that Smith was, indeed, the perpetrator and he’d seen him face to face. Perhaps recognizing, albeit not acknowledging, that there may be such a thing as a Connick special, SCOTUS took cert. soon after Thompson and in brief, terse and matter-of-fact 4 page 8-1 opinion summarily reversed Smith’s conviction.

8-1. A lone dissent. Thomas authored a 17 page dissent extolling the virtues of eyewitness testimony and the jury’s function of determining the reliability of that testimony. Garbage. He knows it, I know it, his four conservative colleagues on the bench know it and don’t you fall for it. A jury can, I suppose, effectively evaluate the reliability and believability of a witness’ testimony, but only if that jury has all the relevant information before it from which to reach that conclusion. Hiding the fact that the only witness had several times claimed that he could not ID anyone hardly seems non-material.

That Thomas continues to ply this nonsense is not a testament – nor should it be – to the decline of the value of The Court, but rather a telling indictment of his abandonment of any modicum of intellectual honesty. In other words, he just doesn’t give a fuck anymore. Unfortunately, in doing so, he is fast making his presence on the Court a joke and, in the process, devaluing the institution.

————-

A day after the Court issued Smith, it issued Perry v. New Hampshire [PDF], a case that had incorrectly been called the next step in the development of eyewitness identification jurisprudence. The issue in Perry was far more limited and not a review of lineup procedures in of themselves. Here‘s a nice article by the same fellow who wrote the Slate piece above on the juxtaposition of the two cases.

Until a caller called in with a comment toward the end of the show (which you can listen to in its entirety here). The caller “Wayne” offered a personal anecdote, which I paraphrase below:

I’m a cab driver in New Haven and back in 1979, I had transported an individual, who it turned out had just committed a murder. So, as a witness, I was called to testify at the trial and identify him. Now, when I had transported him, he was a thin fellow, riddled with a drug addiction, unkempt, mousy and had that lean and hungry look. After getting 3 squares a day, regular sleep and no sunlight for a year at the taxpayer’s expense, he looked like a different man. He’d put on weight, had grown hair and was looking well-fed. I couldn’t recognize him at all. I couldn’t see the person I had transported a year earlier, so when asked to identify the passenger, I figured, heck, it has to be that guy sitting next to the defense attorney, looking quite out of place in a suit. So I pointed in that direction. Luckily, there was other evidence and he was convicted.

Read it again if you’re sitting here thinking “well, what’s the problem?”. The problem is that this witness admitted that he had no idea whether the defendant was indeed the same person who he had transported a year ago, but pointed at the guy sitting in the courtroom anyway, thereby making an in-court identification that jurors could – and would – rely upon to convict him.

Putting aside the desire that witnesses be honest and forthcoming about their inability to recall the defendant as the perpetrator – they rarely are – this highlights a recurring problem for which there may be no solution. In most criminal trials, there is one person sitting across from the jury who just doesn’t belong to the scene. There is one person who best resembles a Microsoft photoshop faux pas: the defendant. Either he isn’t wearing a suit, or wearing one that’s ill-fitting or is wearing the same shirt that the juror saw him wear during voir dire, or he’s just…sitting there. Looking out of place. Uncomfortable.

And everyone can see it. Even the witness. And that makes identifications in court essentially meaningless. Because, when asked to identify the perpetrator, who else is the witness going to pick out? The prosecutor who’s just been asking him questions? The defense attorney who’s been objecting? The judge? Don’t be silly.

I’ve been thinking about this all day and I’m not sure that there’s a solution. But there is a problem. And the problem is that it turns bad memories into good ones. It turns hunches into convictions. It’s the same problem with juries: the defendant’s here, he’s arrested, he must be guilty. Innocent people don’t just end up in trial for no reason. If the system has got him, it’s got the right guy.

We can control this to some extent during pretrial hearings on the suppression of identifications, but in trial, there’s no apparent remedy. It’s yet another failing that we have to live with and work to overcome.

Holder-Winfield has also introduced other necessary criminal justice reform legislation, like adopting the best practices for eyewitness identification procedures and videotaping interrogations. He has “pre-filed” a bill addressing the former once again.

Of course, with the just concluded Hayes trial and the upcoming circus in the trial of his co-defendant Joshua Komisarjevsky, the debate on the death penalty bill is likely to be emotional, contentious and close. But no one can accuse Holder-Winfield of falling prey to the typical abolitionist tendencies of avoiding confrontation and “waiting for the right moment”, which almost never materializes, because there’s always a heinous crime around which the pro-death penalty folks will rally.

With newly elected anti-death penalty Dan Malloy taking over the reins of the State for the next 4 years, there’s a sliver of hope for abolition.

H/T: CTNJ

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:

Henry filed 56 application to try to reopen his case, at times asking officials to compare the forensic evidence from the crime scene to his own blood type.

His applications, made without the aid of a lawyer, were dismissed as frivolous.

Unfortunately, the physical evidence from crime scene that may have contained DNA to help exonerate him was not kept by police or the Crown. It was destroyed.

56 applications? The Canadians sure are patient, eh? Here, in the US, any inmate filing 56 appeals or habeas petitions would surely be called vexatious and would be the poster boy for calls by some to limit inmates’ access to courts in post-conviction proceedings. Yet, here he is, at try number 56, being found innocent of the crimes he was convicted of. Cases like these should be the seminal examples of why we should never limit access to courts for those claiming innocence. The procedural burdens on the machinery of Government should pale in comparison to the weighty interest of ensuring that innocent people are not convicted and incarcerated.

On a related note, the local NBC station is running this story today: Would you be a good witness?

Using a hidden camera, Stephanie Hoey, special projects manager for NBC Connecticut, stood outside several donut shops across the state and asked people for directions.

Would you remember what she looks like minutes after pointing her in the right direction? We stopped several people who didn’t.

“I don’t really remember. Her hair was short. I definitely have no idea what she was wearing though,” Natalia Khandrs, of Norfolk, said.

Stephanie is about 5-feet 5-inches tall and has short red hair. She was wearing glasses, a gray jacket, black pants and a striking blue and silver necklace.

Very few people who remembered any of that.

When interviewed for the story, State Police spokesperson Lt. Paul Vance repeated the dangerous party-line:

“All the little bits of information might seem insignificant to a witness or person, but they can be important to solving criminal activity or crime,” Vance said.

The best kind of description would include something distinct or unique about the suspect.

Even though no one in our story was witness to a crime, Lt. Vance says it’s always important to pay attention to what’s happening around you.

This is dangerous nonsense from a police officer and in part what leads to misidentifications. Take, for example, the citizen who heeds Vance’s words. The citizen observes a robbery and tries to remember something “unique” about the suspect, so commits to memory the fact that the suspect had a New York Yankees blazer on. 20 minutes later, the police conduct a show-up with a suspect wearing a New York Yankees blazer. Anyone want to bet that the suspect will be “positively identified”, not because it is, in fact, the same person, but rather because the person was wearing a NYY blazer? If we get eyewitnesses to focus on “unique aspects”, then the human mind will tend to correlate the two. Our natural tendency is towards confirmation bias and once we see that some piece of evidence confirms that which we had in mind already, the rest of the pieces close around that belief and start to arrange themselves in a way that support that belief.

Honestly, the more I read about eyewitness misidentifications and the tricks the human mind plays on us, the harder I find it to believe that they have any reliability whatsoever.

The NBC story reeks of this “Invisible Gorilla” video, btw, which has a greater “Wow!” factor:

The Door Experiment

And we want to trust eyewitnesses.

]]> http://apublicdefender.com/2010/11/11/best-lineup-ever/feed/ 1 http://apublicdefender.com/2010/06/13/change-blindness-and-the-fallacy-of-the-all-remembering-cop/ http://apublicdefender.com/2010/06/13/change-blindness-and-the-fallacy-of-the-all-remembering-cop/#comments Sun, 13 Jun 2010 20:49:37 +0000 Gideon http://apublicdefender.com/?p=3116 Change blindness is a visual perception phenomenon in which the human mind fails to detect pretty significant changes in our surroundings and distorts our memory.

The most recent famous example of change blindness and its relative, inattentional blindness, is the “count the passes” experiment, which I’m sure everyone’s heard of by now (read the NYT review of their book on the subject). What that illustrates is that when our mind is focused on one task, we zero in on it at the expense of most things around it. For the criminal defense lawyer and the criminal justice system, this is a particularly troublesome issue.

Eyewitness misidentification has become the number one cause of false convictions and it’s easy to “see” how. During a particularly stressful event, when combined with weapons focus, the human mind zeroes in on one thing and pretends to see the others. It fills in the gaps as it were and it is on this peripheral vision that faces are remembered and convictions are obtained.

But there’s a problem with remembering faces. Look at this video:

The study indicated that at least half the subjects did not notice the change in the participant. That’s pretty stunning. If there’s one thing that this new tidal wave of research on memory tells us, it is that memory is fickle and malleable and generally not very reliable. Memory can be distorted, can be reaffirmed by what we believe we saw and not what we actually did see and can be manipulated by others.

Take the sad case of Jerry Bordeaux and Roger Christianson. Bordeaux, fighting a traffic ticket, hired Christianson to represent him. Months later, when the matter was called to trial, Christianson answered for Bordeaux and started questioning the officer:

When the case started, the sole witness was Officer Coronado, who had ticketed Bordreaux. While Officer Coronado was on the stand, Mr. Christianson asked him:

“And what was I wearing?”
“Had I cut off my beard that day?”
“Was I wearing a beard that day?”
“I am the driver?”

After Officer Coronado identified Mr. Christianson as the person he had ticketed that day, Mr. Christianson revealed that he was actually the lawyer! What a brilliant ploy — if Officer Coronado couldn’t even remember which person he had ticketed, how could he be certain of what Mr. Bordreaux had done. By switching places with his client, Mr. Christianson impeached the reliability of Officer Coronado’s memory.

Gotcha. The downside, of course, is that Christianson violated the ethical rule of candor to the court in its most literal sense and unfortunately is now disbarred. The irony is that the court routinely continues to receive less than honest information during trials from eyewitnesses, the State and judges frequently turn a blind eye to the one piece of evidence that would expose the truth about the inadequacies of eyewitness identification. Most courts don’t yet permit expert testimony to be presented to juries.

Cops, on the other hand, are permitted to strut into court and testify as if they come from a higher breed: their memory is sharper and always accurate, they never lie, their motivations are pure and honest. A lying cop is never lying.

If an officer, so trained in the art of observation and attention to detail, can be so easily fooled by a wily lawyer about an identification made without much stress, in broad daylight, how are we, as a people, to rely on the identifications made by those under extreme stress and threat of a weapon in their face? Yet it is on the backs of such dubious declarations of confidence that we banish people to serve decades of incarceration and meet every effort to expose the shaky foundations of that conviction with rock-like resistance and scorn.

You think you’ve seen the “count the passes” experiment? Watch it again:

It is my intent to henceforth show this video to every single jury in every single case that relies on eyewitness identification. Any ideas on how?

Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.

There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).

Good news:

The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.

In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)

Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.

For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.

The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.

An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.

Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.

The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.

Bad news:

I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).

The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.

A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.

For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.

I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?

So here we go again.

Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:

S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.

H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.

H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.

The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:

First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:

(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.

Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?

The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.

The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.

The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.

But wait, it gets better. And how:

Sec. 4. (NEW) (Effective October 1, 2010) The Chief Public Defender, the Chief State’s Attorney and the Chief Court Administrator, or their designees, shall develop and implement a plan for the collection and maintenance of information on all homicide cases that could be charged and prosecuted as capital felonies, notwithstanding that any such homicide case is not charged, prosecuted or disposed of as a capital felony. Such information shall include, but not be limited to: (1) Information on the race, ethnicity, gender, religion, sexual orientation, age and socioeconomic status of the defendant or defendants and the victim or victims, (2) information on the geographic area where the offense occurred and where the offense was prosecuted, (3) the nature and circumstances of the offense, (4) the offense or offenses for which the defendant was charged, (5) the offense or offenses for which the defendant was prosecuted, (6) if the case was tried by a jury, the race, ethnicity and gender of the persons who served on the jury and the persons who were excused from serving on the jury, (7) the offense or offenses for which the defendant was convicted or acquitted, (8) the sentence sought by the prosecution, and (9) if the defendant was convicted, whether such conviction was the result of a trial or a plea, and the sentence imposed.

Sec. 5. (NEW) (Effective October 1, 2010) (a) No person shall be subject to a sentence of death or sentenced to death if such sentence was sought on the basis of the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim.

(b) A defendant charged with the commission of a crime punishable by death may raise a claim that considerations of the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim played a significant part in the decision to seek or impose a sentence of death in his or her case. The defendant shall raise such claim at the pretrial conference. The defendant shall state with particularity how the evidence supports such claim.

(c) The court shall schedule a hearing on the claim and shall prescribe a time for the submission of evidence by both parties.

(d) At such hearing, the defendant has the burden of proving by clear and convincing evidence that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek the death penalty. The state may offer evidence in rebuttal of the claims or evidence of the defendant.

(e) Evidence relevant to establish a finding that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek a sentence of death may include statistical evidence or other evidence, or both, that sentences of death were sought significantly more frequently: (1) Upon persons of one race, ethnicity, gender, religion or sexual orientation than upon persons of another race, ethnicity, gender, religion or sexual orientation, or (2) as punishment for offenses punishable by death committed against persons of one race, ethnicity, gender, religion or sexual orientation than as punishment for offenses punishable by death committed against persons of another race, ethnicity, gender, religion or sexual orientation.

(f) A finding that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek a sentence of death may be established if the court finds that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was a significant factor in decisions to seek the sentence of death in other cases in this state at the time the sentence of death was sought.

(g) If the court finds that the race, ethnicity, gender, religion or sexual orientation of the defendant or the victim was the basis of the decision to seek the sentence of death, the court shall order that a sentence of death shall not be sought.

McCleskey? What McCleskey? You thought I was done? How wrong you are. The bill further calls for the creation of a committee to which the state must make a request to seek the death penalty in a particular case, just like with the Federal system, grandly titled The Death Penalty Authorization Committee. The attorney for the defendant will have an opportunity to convince the Committee why the death penalty should not be sought in a particular case.

Sadly, these proposals weren’t pulled out of someone’s ass. They are, in fact, the very recommendations of the Connecticut Commission on the Death Penalty, submitted to the legislature a long 7 years ago. [The full report can be found here.]

Astute readers will have by now guessed that the chance any of these bills will become law is next to a negative billion. In fact, the death penalty bill may have the lowest chance of becoming law ever in the history of legislation in the entire world. But someone in the legislature is up to something and this will make the public hearing damn entertaining. Pity I won’t be able to attend, but if you are, use your mobile phones and leave comments tomorrow.

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:

“We don’t think the defense has shown anything wrong with the verdict,” Mr. Dwyer [the chief assistant Manhattan district attorney] said.

I’m not sure what world Mr. Dwyer lives in that 5 recantations don’t imply something wrong with a verdict, but wherever it is, I don’t want to live there.

What cases like these ought to do is put more focus on SCOTUS’ upcoming decision in Pottawattamie County v. McGhee [oral argument transcript here; scotusblog recap here]. The issue in Pottawattamie is whether prosecutors should enjoy immunity for intentionally coercing false testimony in the investigation phase of a prosecution and then introducing that same testimony at a trial that leads to conviction. In that case:

In 1978, Curtis McGhee and Terry Harrington were convicted of murdering a retired police officer in Pottawattamie County, Iowa and sentenced to life in prison. Twenty-five years later, the release of new files in the cases revealed that prosecutors had fabricated the testimony of a lead witness at their trials and failed to disclose evidence about an alternative suspect to the defense. The Iowa Supreme Court vacated Harrington’s sentence, and McGhee pleaded guilty to a lesser charge in exchange for time served. Both prisoners were freed.

The oral argument in Pottawattamie is something to read. It shocks the mind that something so simple as intentionally framing an innocent person is a phrase never once uttered by any party (not that I remember anyway). Some of the justices were more concerned with the chilling effect on prosecutors. Look, we all acknowledge that most prosecutors try to do their jobs fairly and very, very few of them wouldn’t be bothered by a wrongful conviction on their conscience. But how does removing immunity for intentionally framing someone produce a “chilling” effect on their prosecutorial function? It seems bass-ackwards. If anything, wouldn’t it make prosecutors more careful in whom they pursue and whom they charge? Would  removing such immunity not provide the very result which we seek: no wrongful convictions and certainly none that are obtained by intentional falsification of the evidence? [Listen to NPR's Morning Edition's coverage of this case last week, which includes listener calls from prosecutors and public defenders.]

For me, the answer in Pottawattamie is simple: If you’re a prosecutor who intentionally frames an individual, you should be sued. Not only should you be sued, but you should be disbarred. The latter is less likely to happen than I am to become the next Chuck Norris, but the former should be a real threat. The power of a prosecutor is awesome and that power should be wielded with great care and never with malice or dishonesty.

Had police and prosecutors not pressured 5 people into falsely identifying Mr. Bermudez, he probably wouldn’t have spent 17 years in jail for a crime he didn’t commit. That’s the real moral of this story, not the legal fiction of “opening floodgates” or “chilling effects”. Anyone who gives any weight to such an argument needs to spend 17 years in jail in his place.

And because it’s a Sunday night, I give you this little joke:

Get it?

So, in honor of Good Friday (no, not really, don’t get mad at me and leave a 1000 comments), here are three Good Bills that died this year in committee, and two “it’s Good these Bills died in committee”:

These Good Bills Died:

• Videotaping of custodial interrogations
• An Act Concerning Eyewitness Identifications
• An Act Concerning the Rescission of Probation

It’s Good These Bills Died:

• An Act Implementing The Adam Walsh Act
• An Act Concerning the gutting of habeas corpus reform

Of course, a straight-up abolition bill was proposed but there was no public hearing. I’ll have a post on the good bills that passed and the bills that shouldn’t have passed coming up soon.