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Archive for the ‘innocence’


The fruit of the poisonous confession 15

Posted on January 01, 2010 by Gideon

fruit of the poisono---oh nevermind

We at this blog, and as a consequence you as an observant reader, have known for quite some time now that false confessions are an underrated scourge in the world of wrongful convictions. Some 15-20% of all exonerations have seen the original convictions brought about by these false confessions. The causes of false confessions have been explored before: mental acuity, extremely long interrogations, psychological manipulation and outright lies.

A new paper soon to be published by Saul Kassin – one of the leading experts on false confessions – and others does a tremendous job of highlighting the history of the law on confessions, their admissibility and challenges to these confessions in US and UK courts. The paper is notable for three reasons: 1) It lays out this legal history, the current state of the research and the history of the development of this research in detail, 2) It offers some reform proposals and most interestingly 3) it posits that a false confession can have an adverse effect on how the jury perceives the remaining evidence in a case. For all of these reasons, it is an absolute must read for all criminal defense lawyers and even those prosecutors who are driven by the interests of justice.

What I want to do in this (extremely lengthy) post is to highlight some of the important and relevant points of the paper, but let me assure you: nothing I write here will be an adequate substitute for you actually reading the paper. It is that good and that important.

The problem with confessions using our current models starts at the beginning: with police interrogation. As opposed to the UK, which uses a “fact-finding” model of interviewing suspects, US police departments for the most part use the “confession” model. The goal of most interrogations in the US is to confirm the suspicion of the interrogator by obtaining a confession. These “trained” interviewers rely essentially on hunches, which are based on flawed beliefs of body language:

Often, however, it is based on a clinical hunch formed during a preinterrogation interview in which special ‘‘behavior-provoking’’ questions are asked (e.g., ‘‘What do you think should happen to the person who committed this crime?’’) and changes are observed in aspects of the suspect’s behavior that allegedly betray lying (e.g., gaze aversion, frozen posture, and fidgety movements). Yet in laboratories all over the world, research  has consistently shown that most commonsense behavioral cues are not diagnostic of truth and deception (DePaulo et al., 2003). Hence, it is not surprising as an empirical matter that laypeople on average are only 54% accurate at distinguishing truth and deception; that training does not  produce reliable improvement; and that police investigators, judges, customs inspectors, and other professionals perform only slightly better, if at all—albeit with high levels of confidence (for reviews, see Bond & DePaulo, 2006; Meissner & Kassin, 2002; Vrij, 2008).

The most famous of police interrogation techniques is the Reid Nine-step:

A nine-step process then ensues in which an interrogator employs both negative and positive incentives. On one hand, the interrogator confronts  the suspect with accusations of guilt, assertions that may be bolstered by evidence, real or manufactured, and refuses to accept alibis and denials.  On the other hand, the interrogator offers sympathy and moral justification, introducing ‘‘themes’’ that minimize the crime and lead suspects to see confession as an expedient means of escape.

Compounding the problem of these questionable police interrogation techniques is the apparent contradiction in US courts’ treatment of confessions in the criminal justice system: on one hand, courts recognize the awesome power of a confession and yet on the other seem indifferent to the voluminous research that tends to show that most techniques are coercive and unreliable. Originally governed by the corpus delicti rule, confessions are now viewed through the lens of the “trustworthiness” rule, after Opper v. United States (for a CT discussion see State v. Hafford). This rule is intended to permit the admission of only those confessions that can be independently corroborated. However, in practice, the rule doesn’t provide the benefits it seeks to:

From the ass’s mouth 2

Posted on December 02, 2009 by Gideon

Or: Didn’t your mother ever teach you not to speak ill of the dead, David Martin? David Martin, of course, is the man who “represented” Cameron Todd Willingham, the possibly innocent man executed by Texas on the basis some rather dubious arson evidence.

Willingham is dead, there is a controversy over his innocence and David Martin was apparently missing the limelight. So he decided to give an interview to the press in which he said the following:

The veteran defense attorney represented Willingham at trial. He looked at all the evidence. And he has no doubt that his client deserved to die.

“I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies,” Martin said. “I think that he was guilty, that he deserved death and that he got death.”

This is a man that, at least in name, represented Willingham. A lawyer, a member of the bar and a capital criminal defense attorney. I use the quotes around the word represented because:

Martin’s case was brief, with just two witnesses. The first was the family baby sitter, who testified there was an oil lamp in the hallway, suggesting it might have spilled and spread flammable liquid. The second was a jail inmate, who was going to dispute the testimony of a jailhouse snitch who claimed Willingham had confessed. But the judge forbid most of his testimony as hearsay.

But of course, one cannot keep a champion fool like Martin quiet. This is not the first time he’s opened his mouth about Willingham and his belief in Willingham’s guilt. A mere few months ago, when the arson story broke, he gave an interview on Anderson Cooper:

[youtube]http://www.youtube.com/watch?v=L5cFKpjRnXE[/youtube]

I must’ve missed it, but my good friends over at Defending People and Simple Justice didn’t (see Mark’s post for links to other posts on Martin’s stupidity).

As Scott summed it up:

While no one can make a criminal defense lawyer believe in the innocence of his client, or chose to argue it after his representation has ended, he can be taken to task for doing the unthinkable, the outrageous and the facially wrong.  David Martin’s comments are a disgrace of the lowest order.  And, for good measure, just as criminal defense lawyers aren’t expected to believe in the innocence of every client, they similarly aren’t endowed with the superhuman ability to know when a person who professes innocence is in fact guilty.

I may lack an explanation for what drove David Martin to condemn his own client publicly, particularly in the face of overwhelming evidence of innocence, but I have no doubt that his statements on Anderson Cooper 360 are some of the most despicable I’ve ever heard from the mouth of a lawyer.  Never, but never, smear your own client.

I’m glad to say that no one I know would act like Martin did (although one has come close).

Another conviction reversed: Exhibit n for no prosecutorial immunity 0

Posted on November 15, 2009 by Gideon

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:

If only they’d used such caution the first time 5

Posted on January 04, 2009 by Gideon

As often happens, I lollygag when it comes to writing posts. Then, all of a sudden, in a span of a day of day or two, several stories appear that tie together the strands in my head. Today is such a day.

Percolating in the back of my head was some chagrin directed toward the prosecutors in the Clarence Elkins case (aka #92), the subject of Friday night’s Dateline. Elkins, in a case with some parallels to Miguel Roman, was convicted of raping his niece and raping and murdering his mother-in-law based on one single dubious eyewitness: his niece, who told cops that the killer looked like her uncle. Clarence, meanwhile had an alibi: he had been drinking heavily at a bar and then came home to his wife, who was awake. They went for a walk.

The police, however, got their blinders on because of the statement of the niece, despite the fact that rudimentary DNA testing excluded Elkins. Elkins’ wife, convinced of his innocence, began investigating on her own:

DNA Exoneration FTW 0

Posted on December 19, 2008 by Gideon

Following up on the DNA exoneration story from two weeks ago, I can happily point you to this report that Miguel Roman has been granted a new trial and was released from custody today, in time for the holidays.

Judge David P. Gold agreed after a brief hearing today to release Roman, 52, on a promise to appear in court. Roman’s lawyers, citing evidence that appears to exonerate Roman in the 1988 killing of 17-year-old Carmen Lopez, petitioned for a new trial for Roman.

Gold granted that motion today.

Prosecutor David Zagaja noted that the petition for a new trial stems from newly discovered evidence stemming from a technology that “simply didn’t exist” in 1988. It was not immediately clear whether the prosecution will proceed to a new trial or move for a dismissal of the case.

It would be remarkable if the State decided to prosecute him again, so  I don’t think that will happen. More likely than not, the charges will be dismissed.

The saddest part of this story is the 20 years of his life that Roman lost.

Prosecutorial hubris: Ethics, shmethics 0

Posted on November 11, 2008 by Gideon

Prosecutors are special. They have their own little section [pdf - Rule 3.8] in the rules of professional conduct. For the most part, they’re people like you and me, trying to do their job, abiding by their special duties and responsibilities.

Then you come across prosecutors like Ben Field of Santa Clara County, so intent on furthering his career that he doesn’t care who stands in his way: defense lawyers, rules of professional conduct, rules of evidence, the U.S. Supreme Court or the bar grievance committee. Here’s the full investigation conducted by the Mercury News that, in part, led to the following.

Back in May, Field faced a disciplinary hearing, which was based on alleged misconduct in three cases dating back to 1995:

The state bar case includes charges of misconduct in connection with a 2002 murder case, when Field failed to tell defense attorneys that a key prosecution witness may have taken part in the crime. The judge called it a “blatant” violation of requirements that prosecutors hand over any evidence that could help prove innocence.

The bar also has accused Field of misconduct in connection with a 1995 rape charge, which involved questions about whether the defendant was old enough to be tried as an adult. Four times, different judges told Field to file a motion and receive court approval before ordering the physical examination, according to the complaint.

Field went ahead and requested the exam anyway. The evidence was not allowed in court and the case was dismissed. In that case, the complaint alleges, Field “willfully disobeyed a court order.”

In the Auguste case, Emerson told Field that he wanted the prosecutor to turn to him for approval before conducting any further searches for evidence. Four days later, armed with the approval of a Colorado judge, a Santa Clara County district attorney’s investigator joined authorities in searching the Colorado home of Donna Auguste. She was not there at the time.

Prosecutors were beginning to get up in arms back in May. That was just the beginning. Last month, the grievance committee recommended that Field be suspended for three years. This is shocking to many because it shows that the bar committee has teeth and is downright earth-shattering to prosecutors because they may finally be held accountable for their actions. Here’s what the recommendations said about Field:

Field “still does not understand that he stepped far outside his professional obligations and committed serious misconduct,” states the filing of bar trial counsel Donald R. Steedman and Cydney Batchelor. The bar prosecutors also questioned Field’s claim that he will be more careful in the future, contending that Field “evinced no change in the arrogant attitude” throughout those cases, and up through the disciplinary hearing.

The bar contends the four cases demonstrated repeated “acts of dishonesty and an intent to subvert the proper workings of the criminal justice system.” In one case they cited, Field concealed from defense attorneys that he knew the location of a witness whom the defense was having trouble locating. Instead, he urged that defense efforts to win a new trial be rejected because the witness was missing.

Naturally, they’re not happy. The decibels have gone up several levels. So they’re doing what they do best – appeal try to change the law to restrict the power of the bar to suspend attorneys. I kid you not.

In the wake of a disciplinary hearing against a top local prosecutor, the union that represents Santa Clara County prosecutors and public defenders is asking the California District Attorneys Association to sponsor a bill that would essentially curb the power of the state bar to punish all lawyers.

[T]he draft calls for a two-year statute of limitations for bringing any charges against attorneys.

This two year statute of limitations is quite ridiculous, btw. Many convictions are found to have been wrongful years after they are finalized. In some cases, prosecutorial misconduct may not come to light for a while. If justice is the goal – as prosecutors love to say – then there should be no limit on innocence and certainly no limit on punishment for those that subvert it.

“Are we doing this solely in response to Ben Field? No,” said union president and prosecutor Kevin Smith. “But when a member gets tried, you learn how the process works, and this process is unfair.”

It’s also particularly ironic that the prosecutors are complaining that Field didn’t get a fair trial when he was on trial for depriving defendants of a fair trial.

There’s a reason there is a special section for prosecutors in the Rules of Professional Conduct. It’s not to let them know they are special and exempt from the ethical requirements, but to remind them that their duty is and responsibility is greater than that of the ordinary lawyer and that additional demands will be made of them.

Not whining about being finally held accountable for ethical violations isn’t one of them, but it should be.

Thanks to loyal reader LJS for the tip.

SCOTUS will decide limits, if any, of prosecutorial immunity 1

Posted on November 03, 2008 by Gideon

The Supreme Court will hear oral argument Wednesday in Van de Kamp v. Goldstein, a case I blogged about previously. [Given that tomorrow is election day, I foresee that most of my time will be spent in front of the TV, watching election returns.]

In Van de Kamp, SCOTUS will decide whether the chief prosecutor for L.A. can be held civilly liable for a wrongful conviction, after members of his office failed to turn over ecxulpatory evidence to the defense.

From my previous post:

The lawsuit alleges that the prosecutor’s office failed to set up an intra-office system to disseminate information on the reliability of informants and because of that Goldstein was convicted based on false testimony from an unreliable informant.

Despite this suit’s civil context, the implications for those of us in the criminal world will be immense. If prosecutors will be held liable for failing to turn over exculpatory information that its office possesses (just as information in the possession of cops is imputed to the state), then perhaps they will start to err on the side of caution in what materials they turn over.

One of the biggest problems with Brady material these days is not that prosecutors willingly hold on to it, but that they sincerely don’t believe that some exculpatory material is exculpatory. Whatever the result of this case, hopefully it prompts them to take a closer look at their determinations.

Pro se per se 5

Posted on October 31, 2008 by Gideon

I’m a little late on writing about this story (via several sources), but it sure is a doozy.

You know how it’s common knowlege that most appeals aren’t successful? Well, if you were a pro-se petitioner in Louisiana for the last 13 years, you knew that you wouldn’t win. Why is that? Because the Chief Judge of their Court of Appeals directed his clerk to summarily deny all appeals from pro-se petitioners without circulating the appeal to other judges.

The clerk, ridden with guilt, committed suicide earlier this year and left a note confessing everything.

This immoral and apparently illegal policy was in place until Jerrold Peterson, the staffer charged with implementing it, blew his brains out in May of last year. Peterson was driven to it in part, his suicide note suggested, by guilt over the nefarious tasks the judges made him perform.

In his note Peterson explained how the court gave indigent appellants the bum’s rush.

Although every criminal writ application is supposed to be reviewed by three judges, he was deputed to winnow out any that had been filed pro se and arrange for their automatic rejection.

Thus were an estimated 2,500 appeals deep-sixed without any judicial consideration whatsoever.

Now, facing public embarassment and possible ethical violations, the Louisiana Supreme Court has stepped in and asked…get this…the same appellate court to look at the appeals again. Note that they did not ask the Court to conduct an investigation into this practice, but simply to consider those appeals that were so summarily denied.

Because, if we placate the defendants with another cursory look at their appeals, we can sweep the ethical violations under the carpet.

At first this whole thing seemed rather odd to me. After all, how is this even possible? Here’s how:

Edward Dufresne, Chief Judge of the Fifth Circuit, took charge of pro se appeals in 1994. He then had Peterson prepare rulings denying writs for all of them and signed off “without so much as a glance,” according to the suicide note. “No judge ever saw the writ application before the ruling was prepared by me,” Peterson wrote in a second suicide note to the Judiciary Commission.

The rulings also bore the names, though not the signatures, of judges Marion Edwards and Wally Rothschild. Neither Edwards nor Rothschild had any clue as to what was in the applications, or even knew that they had been filed, according to Peterson.

So you’ve got one complicit judge and maybe three. But there are 5 more on that court. What of them? Are we to really believe that these 5 (or 7) other judges never once questioned the stark absence of pro-se appeals? Particularly in Louisiana, whose system has the following characteristics:

  • About 90 percent of criminal defendants in Louisiana are indigent.
  • Louisiana only provides post-conviction legal aid in death penalty cases.  Everyone else must either hire a lawyer, find a lawyer to handle their case pro bono, or handle the appeal themselves.  Obviously, most have no choice but to opt for the latter.
  • One criminal defense lawyer in Louisiana told me that if you’re convicted of murder in Louisiana and you’re innocent, you’re actually better off getting the death penalty.  At least then you’ll get a team of lawyers, investigators, and experts to help with your appeal.

This from a state whose criminal justice system was already crumbling. It’s hard to believe that people such as Judge Dufresne take an oath to uphold the law and to prove equal protection under it. Disbarment may be enough, but only barely.

Justice delayed is no justice at all.

Troy Davis gets a stay 3

Posted on October 24, 2008 by Gideon

The 11th Circuit has stayed Davis’ execution – set for Monday – and asked both parties to brief whether Troy can file a successive petition. They also included this interesting question:

It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard [clear and convincing evidence that no reasonable fact finder would have found him guilty] but cannot satisfy his burden under the first, due-diligence question.

If someone has a copy of the order, please let me know. I’d like to link to it.

Troy Davis is “innocent” because… 5

Posted on October 20, 2008 by Gideon

This “rebuttal” of Troy Davis’ advocates does little to dispel any notions of an impending injustice [via Paul Cassell at Volokh].

More disturbing than the weak “rebuttal” (for an extensive rebuttal of the “rebuttal”, see this comment), however, is the post itself by Paul “I used to be a Judge” Cassell, which contains some very disturbing assertions and implications.

He writes:

There has been much ado in the media lately about another “innocent” person about to be executed. Unfortunately, most of the media coverage about the impending execution of cop-killer Troy Davis has spent precious little time discussing the facts of the case.

I guess in Paul “I used to be a Judge” Cassell’s world, no innocent man has ever been sentenced to death, despite, well, innocent people actually being released from death row. Let’s just ignore those that were set free after numerous years awaiting execution.

Further, Paul “I used to be a Judge” Cassell implies that somehow the media coverage has ignored the facts of the case. While it may be true that lately the media accounts haven’t focused on the facts, that doesn’t mean that when the story about Davis first broke, the fact weren’t front and center. Without a link to back up his assertion, I’m disinclined to give him any credit. What else would they focus on right now? The issue is whether an innocent man is about to be executed. The stories should rightly focus on the reasons why he might be innocent and any status updates.

Then, Paul “I used to be a Judge but now I’m a victim’s advocate” Cassell throws out this gem:

Even more poignant is this link, which has information about the victim in this case — Officer Mark Allen MacPhail.

I guess as a standalone link it is fine, but to somehow imply that the saintliness of a victim should be a consideration in the guilt or innocence of a defendant is an affront to the whole judicial system. Would he care less about this case were the victim another drug dealer from the ‘hood? I suspect yes.

Obviously I know nothing of Officer MacPhail, nor do I presume to. By all accounts he lived a good life and was killed in the line of duty – an obvious tragedy. But if we start making determinations about the guilt of the accused based on the character of the victim, well, what sort of criminal justice system would we have?

Even more disturbing is that this is a man who used to be a judge. One of the characteristics required of a judge is to be able to evaluate both sides of an argument, assess the facts, give each one credence and then decide how to apply the law. Paul “I used to be a Judge” Cassell seems to think that these are characteristics that stay with the position of a judge, not the person occupying the judgeship.

Finally, we get this zinger:

Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn’t had due process yet.

I think he may just be advocating for a statute of limitations on innocence claims. I don’t know that that merits any consideration.

This also isn’t the first time Paul “Good thing you’re not a Judge anymore” Cassell has made some outrageous comments.

Troy’s execution date is coming up soon. Read more about him and make your own decision.

Just a little guilty 1

Posted on August 27, 2008 by Gideon

Due to unforeseen commitments, I’ve missed out on a great discussion in the blawgosphere between Scott, Scott, KFPL, Jr., Scott again and then KFPL, Jr. again on the presumption of innocence, actual innocence and not guilt and whether juries should be given that third option of finding a defendant “innocent”.

The gist is this: a defendant, found guilty by a jury, has his conviction overturned on appeal on grounds of insufficiency of evidence. Does he have a right to compensation under the wrongful conviction statutes? If not, why not?

I’ve written about this before and I think it comes down to the distinction between factually innocent and legally innocent. Compensation statutes are geared more toward (and public support of such statutes is based on) factual innocence. Legal innocence (which may very well be the same – and as Scott argues, and I agree, is the same), to the minds of the legislators, is something different.

This distinction places a tinge of guilt on the “legally” innocent: He’s guilty, but they couldn’t prove it.

Which, if you think about it, is exactly the same as the presumption of innocence. He’s not guilty until he’s found guilty. Some lawyers like to ask that question of prospective jurors: “If you were to vote today, how would you vote?” The correct answer, of course, is not guilty, because there has been no evidence presented of guilt.

But that’s perhaps where the problem lies. That we, as lawyers, create and perpetuate these two worlds, where factual innocence and legal innocence are two separate and distinct beasts. That we revere factual innocence and look upon legal innocence as an acceptable alternative.

They aren’t – and shouldn’t be – different. Innocence means just that. Innocent. Whether it is because the state couldn’t prove that you were guilty or because, as all-seeing superbeings we “know” that you weren’t guilty.

The second, as you can see, is an impossible scenario. No one truly “knows”, unless you were there (and even then, given the eyewitness ID failures, it’s hard to believe that someone will always “know”). Requiring someone to show that they are factually innocent, is in most cases, like asking someone to prove that God doesn’t exist. You simply can’t prove that negative.

Indeed, the bulk of scientific evidence and theories is based on hypothesis. How little of it is actually proven? Has anyone actually seen a black hole? Yet we know they exist.

Both physics and astronomy are sciences. So is the law.

Being found not guilty is the same as being found innocent. Let’s not confuse the issue further.

Videotaped interrogations pilot program to start soon 1

Posted on April 14, 2008 by Gideon

At the end of June, four police departments in CT will begin to videotape interrogations of suspects of violent felonies.

Supporters think such a policy should have been required in Connecticut years ago, especially in light of two high-profile cases in which police were accused of coercing confessions. Law enforcement officials have remained leery, voicing concerns that suspects will balk at being recorded and that defense lawyers will critique interrogation tactics.

In 2003, Illinois became the first state to enact legislation requiring electronic recording of interrogations. Maine and New Mexico soon followed suit. But even those states were a decade behind Alaska and Minnesota, whose supreme courts mandated taping in the mid-1980s. New Hampshire and New Jersey’s supreme courts have since made similar rulings. Additionally, 500 smaller jurisdictions have adopted recording policies.

Under State v. James, a 1996 CT Supreme Court decision, videotaping interrogations is not required. Despite that, many organizations have lobbied tirelessly for requiring such videotaping.

Rep. Michael Lawlor, the committee’s co-chairman, said the measure has been merged with another bill aimed at compensating those wrongfully convicted. He said a Commission on Wrongful Convictions would evaluate the pilot program and report back in January. “Then next year we’ll talk about expanding” the videotaping program said Lawlor.

Lawlor said he believes Connecticut will eventually require recording statewide.

Won’t be too soon.

Removing prosecutorial immunity 4

Posted on April 13, 2008 by Gideon

Update: SCOTUS grants cert.

Original: As highlighted in this L.A. Times article and this Scotusblog summary, the Justices will announce tomorrow whether cert will be granted in Goldstein v. Van de Kamp [9th Cir. decision here]. Goldstein was released from prison after serving 24 years for a crime he did not commit.

Goldstein was ordered released after 24 years in prison after the sole eyewitness recanted and doubts emerged about a supposed confession by Goldstein to an informant. Years after his conviction, Goldstein learned that his jailhouse accuser — a three-time felon — had lied in court when he denied having received promises of special treatment from another county prosecutor in exchange for his testimony.

The lawsuit alleges that the prosecutor’s office failed to set up an intra-office system to disseminate information on the reliability of informants and because of that Goldstein was convicted based on false testimony from an unreliable informant.

The Los Angeles County district attorney’s office, the nation’s largest prosecution office, once made regular use of jail informants, but at the time it had no system for sharing information among prosecutors countywide about which informants were reliable and what they had been promised.

Van de Kamp, the chief prosecutor from ‘75 to ‘83 has claimed full immunity.

Prosecutors and some observers are all atwitter:

Regardless, the immunity rule should be preserved as an important judicial safeguard, [law prof] Levenson said. “We don’t want [prosecutors] looking over their shoulders. In order to be independent and to make tough calls, they can’t be worrying about whether they will be sued.”

I agree. For the most part. However, given the recent surge in exonerations, why is it not time to reconsider whether prosecutors can be sued in a limited set of circumstances? This seems doubly important given the reluctance of many states to enact compensation statutes for the wrongly convicted.

Consider the scenario where a prosecutor knowingly offers false testimony that leads to a wrongful conviction or hides Giglio material – or even Brady material. Why should that prosecutor (or the State) be immune from suit? Do we want to encourage that behavior? Does that assist in the pursuit of justice? Heck, defense lawyers are regularly sued by clients.

I understand that is not what the lawsuit alleges, but on this lazy Sunday afternoon, it is worth thinking about. What exactly are we protecting when we bar suits that seek to place blame with the appropriate person in appropriate circumstances?

Innocents on Death Row: Who’s counting? 3

Posted on April 09, 2008 by Gideon

John Holdridge, who argued State v. Courchesne last month before the (CT) Supreme Court, has this opinion piece at HuffPo, arguing that the number of exonerations from death row make a strong case for a moratorium on the death penalty.

One of the primary reasons is the recent explosion in the number of death-row exonerations, which the Death Penalty Information Center (DPIC) now puts at 127. In response, some proponents of capital punishment have taken to arguing that many of the freed death-row prisoners are not in fact innocent.

The rest of the article is a good read (or riddled with inaccuracies, if you’re a proponent), but this last sentence piqued my curiosity. What do you consider to be “innocence”, when talking about exonerations? Do you restrict this definition to factual innocence or should it include legal innocence as well?

The DPIC number comes from the inclusive definition of “innocence”. I take factual innocence to mean that there is no credible evidence of an individual’s guilt. How is this different from legal innocence and why is such a distinction necessary or even worthwhile?

In 2005 testimony before Congress, [Oregon prosecutor Joshua] Marquis submitted a document [PDF ]which denied that my former client, Michael Ray Graham, and his co-defendant Albert Burrell were released from Louisiana’s death row because they were innocent. The author of the document claimed that they were released “only because there was insufficient evidence of guilt.” In fact, Graham and Burrell were released after the Louisiana Attorney General’s Office informed a court that there was “a total lack of credible evidence linking Graham and/or Burrell to the crime.”

So, what do you think?

Oh Georgia: Dubious conviction of Troy Davis to stand 13

Posted on March 17, 2008 by Gideon

The Georgia Supreme Court issued a 4-3 opinion today, essentially affirming Troy Davis’ conviction. Troy Davis, you will remember, was granted a stay of execution by the Georgia Board of Parole and received a letter of support from The Pope.

EyeID explains:

According to the court, statements by a slew of witnesses who claimed that they had lied at trial under police pressure were insufficient to support a finding that a different result would likely be reached if the case were subjected to a new trial — in a case in which the only evidence presented was the apparently coerced testimony of the same witnesses. As a result of this inexplicable finding, the Georgia Supreme Court refused to stand in the way of the execution of a man who insists he is, and whom many believe to be, innocent.

Here’s a sampling of the recantations:

I kept telling them that I didn’t know. It was dark, my windows were tinted, and I was scared. It all happened so fast. Even today, I know that I could not honestly identify with any certainty who shot the officer that night.
[…]
After the officers talked to me, they gave me a statement and told me to sign it. I signed it. I did not read it because I cannot read.

and another:

I nodded and repeated what they said, whether it was true or not…. I am not proud for lying at Troy’s trial, but the police had me so messed up that I felt that’s all I could do or else I would go to jail.

It really is remarkable that the Ga. Supreme Court did not find that these recantations would result in a different outcome if Davis were granted a new trial.

An absolutely mind-boggling and repulsive decision.

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