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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.

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?

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?

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.

I’m sorry, I have to say it. She’s freakin’ scary now. I think she’s lost it and I can almost picture her sitting in a darkened room, illuminated by frequent lightning, hair standing up, rubbing her hands together, eyes pointing in separate directions, cackling, laughing maniacally as she imagines these proposals.

The Governor, as part of her budget and state of the state speech yesterday, proposed these changes to the criminal justice system. Are you ready?

I will be submitting legislation to require a mandatory minimum sentence for Burglary in the Second Degree and to change Burglary in the First Degree to include burglary of an occupied dwelling, day or night.

I wonder if she reads the current statutes before making these proposals: “By Jove! I’ve got a brilliant idea! Let’s outlaw one man killing another!”

I would also like to put in place a three-strikes law for those convicted of three violent felony offenses.

And to satisfy those who thought mistakenly there was an “out” in the original proposal, I am removing the possibility of a case review after 30 years. Now it’s three strikes for violent felony convictions and you’re truly out.

There you go. “Original” three-strikes. Completely ineffective and counter productive. I’m also particularly tickled by the “to satisfy those…” comment. American Idol Governor, indeed.

I am also proposing legislation to significantly toughen our laws dealing with sex offenders.

All too often we hear or read about a predator attempting to entice a child online or about a sex offender failing to register as required.

One simple fix I am proposing is to bar offenders from legally changing their names to escape police attention or to avoid registration.

Again with this recidivism nonsense and this shows real ignorance on the topic. Yeah, we hear about MySpace predators because every single time it happens, there’s a media frenzy. Yet, 90-ish % of “predators” will be within the family. They don’t need myspace.

This name changing this is also odd. Why can’t they be allowed to change their name, as long as they register? To change your name, you have to get an order from Court, no? So if you’re on the sex offender registry, it should be pretty easy for someone to figure that out and make the change in the registry.

But I want to go further. I want to require offenders to report in person to police and to provide the name and address of their employers and the license plate number and description of their cars.

And they will also have a special imprint on their driver’s licenses.

Further than need be… This is scarlet letter territory we’re entering into here. Why should the sex offender have to provide the name of his employer? Do we want to further outcast these people? Look at my post from the other day, about the sex offender who can’t be located because he’s been kicked around like a football, or the sex offenders living under the bridge in Miami, one of whom has decided to disappear. Yeah, that’s public safety.

And in the name of public protection, I am calling for another significant change: I want all persons arrested for an A or B felony the most serious of criminal charges to provide DNA samples immediately upon arraignment.Those convicted of lesser felonies and certain misdemeanors must provide a DNA sample at conviction.

These samples will be processed to see if there are any matches related to unsolved crimes.

Incredibly, the law on the books only requires DNA samples to be taken at the end of the inmate’s sentence.

This is where one eye starts spinning uncontrollably, some cats enter the picture and fade to black.

This is just frightening. Absolutely frightening. Presumption of innocence? Them’s just fancy terms. Don’t mean nothing. You’re arrested so you’re guilty. Give up your damn DNA. Heck, I got a better idea. Why wait for people to be arrested. Let’s just have the police go to everyone’s homes. We can all stand in our yards in a line and the police can walk by, taking our DNA. You know, because innocent people don’t exist. Diogenes was right. There isn’t an honest man.

By the way, the statute calls for DNA to be collected after conviction. DOC can choose to collect that sample upon initial entry and they don’t always collect it prior to release.

She’s absolutely lost it and has no idea what to do and what not to do. Pandering is scary enough. This delusional law-making is scarier.

More from CTLP, CT News Junkie.

Disclaimer: This is my opinion. I don’t really think she looks like that in her home. That was my poor attempt at satire. Also, I don’t know what the public defender’s office’s official position would be. This is just mine.

Data recently released by the GHSSS* shows that 60% of you would choose to plead guilty to an offense you did not commit if you could avoid jail time.

This past week, a special prosecutor recommended that Tim Masters be released, after DNA exonerated him of the crime for which he’d been in jail for 9 1/2 years.

What does this tell us? I think it means that a conviction doesn’t mean an individual is guilty. It coud be that the jury found the defendant guilty under a version of the truth as presented to it, or simply that some people decided it would be better to just admit to something you didn’t do and avoid spending years incarcerated.

But what I’m really curious about is the folks that said “no” to the question asked in the poll. It occurs to me that the answer to the question might depend on whether you are a lawyer or not. Lawyers, especially criminal defense lawyers, see the system up close. We have clients who we believe are innocent and yet are convicted. We know how easy it is for the State to obtain a conviction in child sex cases (or even rape cases). Balancing the interests, the prospect of avoiding jail time for sure is too appealing to pass up.

On the other hand, if you’re not a lawyer, the principles of truth and justice might shine brighter. You may actually still believe in the fairness of the system and put faith in the notion that it is a truth seeking enterprise and that you will be vindicated because “you didn’t do it”.

So, I invite those of you who selected “no”, or would select “no” to share your reasons. Are you a lawyer? Why did you choose no? What would make you change your mind? Would you ever plead guilty to a crime you didn’t commit?

Anyone else with any other thoughts is also invited to jump in.

*not a real organization. Kudos to you if you figure out what it stands for.

Juries are often likened to the black box. You know stuff goes in and you know stuff comes out. What happens inside the box, however, is a mystery. People can guess, people can opine (some make careers out of it), but you never really know how a jury is going to behave. Until one of them speaks out, that is.

This unfortunate tale comes from New York, where, after verdict, a juror spoke up and revealed that they misunderstood the judge’s instructions.

The anonymous juror contended that at least six others on the 12-member jury would have found Joseph Cammarano not guilty of gang assault if they had understood the charge properly.

Justice Robert J. Collini had instructed jurors to find Cammarano, 18, guilty of gang assault only if they determined he had stabbed 14-year-old Richard Orloski.

The juror claimed the panel mistook the charge to mean Cammarano should be found guilty of gang assault if they believed he had participated in the Dongan Hills playground melee, regardless of whether he stabbed Orloski.

“We never intended to find (Cammarano) responsible for Richard Orloski’s stabbing, period,” the juror contended.

Part of the cause of this problem is the discretion of judges to permit note taking during trials. This judge did not allow it. The jury didn’t have a written copy of his charge available during deliberations, but requested a read-back of his orders on how to apply the charge in their verdict.

Collini reread his charge on gang assault, and also repeated instructions on three additional charges.

“We had several things read back to us. It was confusing,” the juror contended, claiming that on their return to the jury room, the panelists were still unclear about how to interpret Cammarano’s role in a brawl involving 30 youths in the playground next to PS 52 on Feb. 4, 2006.

I have never understood why note-taking is not permitted during trials. With so much at stake, wouldn’t the interests of justice be best served by the jury accurately remembering the testimony? Memories are faulty, so shouldn’t we aid in their recollection by at least permitting them to take notes? What is this resistance to taking notes?

That’s not all, though. This jury exhibited the classic symptoms of a jury that just wanted to go home:

Describing the atmosphere behind closed doors as including “a lot of cursing and arguing,” the juror claimed the panel was “absolutely split down the middle” as to whether Cammarano stabbed Orloski.

After deliberations began, another member “refused to spend another day” and threatened to hang up the entire panel and force a mistrial if they had to come back on Friday, according to the anonymous juror.

While he was correctly convicted on other counts (and therefore his total exposure doesn’t change much), we still have a man who was convicted of something he shouldn’t have been. That’s unacceptable.

H/T: Indefensible

Update: Scott notes the most obvious downside of juries taking notes: They don’t pay attention to what is currently being said. I don’t think this is as big a problem as he makes it out to be - super juror and what not - and can be rectified with a simple jury instruction. The notes are to assist in recall and should be treated as such. He also points out that notes aren’t perfect and we have a system of perfect recall: reading back the testimony. Sure, that may work in some cases, where the information the jury is seeking is a large part of the case and they are constantly reminded of it. But what of something that seems minor, but could be pivotal? If they don’t have notes to remind them, how will they know what to have read back?

At the very least, the jury should have a copy of the charge.

For a while now, we have heard about exonerations obtained due to DNA testing. The current number from the Innocence Project stands at, I believe, 208. One of the more common refrains you hear from champions of innocence is that there are thousands more in jail that are innocent and have no way of proving it. In some cases, there is no DNA evidence and in some, it is lost.

The Denver Post did a terrific series last month on lost evidence, which they called “Trashing the Truth“. (I apologize if its been covered in the blogosphere before - I just stumbled across it.) The Post engaged in a detailed investigation of evidence rooms across the country and profiled several cases where DNA evidence has been lost or destroyed - willfully or otherwise - and innocence bids are foreclosed.

Authorities across the country have lost, mishandled or destroyed tens of thousands of DNA samples since genetic fingerprinting revolutionized crime solving 20 years ago.

Evidence from cold cases goes misplaced across Colorado.

Delicate traces of human biology sit stuffed into pizza and fried-chicken boxes in rat-infested New Orleans evidence vaults.

And specimens are dumped by the truckload in Los Angeles, Houston and New York - sometimes soon after high-profile exonerations.

In a country whose prime-time TV lineup glorifies DNA forensics, many real-life evidence vaults are underfunded and mismanaged, struggling to keep up with technological advances and lagging behind most corner groceries in the way they track valuable crime-scene items.

Facing real-world training and space challenges, even the best-intentioned clerks commonly toss DNA samples, especially from old cases, in what one expert calls the “sledge-o-matic approach to clearing out evidence rooms.”

“You can’t keep everything,” said Arthur Morrell, Orleans Parish clerk of Criminal Court.

The Denver Post examined purges in 10 states and found that authorities destroyed biological evidence in nearly 6,000 rape and murder cases during the past decade, rendering them virtually unsolvable. Over the past three decades, the loss or destruction of DNA evidence in 28 states has undermined efforts by at least 141 prisoners to prove their innocence, The Post has found.

In this age of high profile DNA cases, it is incumbent upon states to reorganize their storage procedures and provide high-tech facilities. If the criminal justice system is indeed a pursuit of the truth and of justice, then it cannot simultaneously aid injustice by destroying evidence.

There are just far too many instances and far too many inmates profiled by the Post. I strongly recommend that you take this Sunday afternoon to read through some of them, available at the link above. One of the higher profile innocence bids is that of Tim Masters, who was convicted with virtually no evidence, but primarily on some sketches that he had done (he was 15) and an FBI profile that was never created.

Edit: Another one to look at is this piece on Clarence Moses-El, who was first suspected of raping a woman because his name came to her in a dream. (I kid you not.) The three people she initially named (right after the incident) were never interviewed by police. Finally, years after his conviction, a judge ordered DNA testing. One month later, the evidence was destroyed by the police department.

Some of the comments in these stories by law enforcement officials and prosecutors are just disgusting. The arguments they put forth in opposing motions for DNA testing are very very disturbing and make you wonder if they really are seeking justice.

Judge Karazin today issued his Memorandum of Decision [pdf] denying Michael Skakel’s petition for new trial, holding that most of what Skakel based his claims on was not newly discovered evidence.

Skakel sought a new trial based on Gitano “Tony” Bryant’s claim that his two friends told him they got Moxley “caveman style.” Bryant and Skakel attended the same private school.

Karazin wrote in his ruling that Bryant’s statements were admissible, but not credible.

“The corroboration for Bryant’s claim is minimal,” he wrote. “No one has any recall of ever seeing Bryant and his companions in Belle Haven on the night of the murder.”

“The testimony of Bryant is absent any corroboration,” Karazin wrote. “It lacks credibility, and therefore would not produce a different result in a new trial.”

He also claimed that there were three newly discovered witnesses that undermined and directly contradicted the testimony of the state’s “star” witness: Gregory Coleman. Coleman had testified that Skakel confessed to him when they were in private school together. These three witnesses would have testified that Skakel did not confess.

Judge Karazin ruled, however, that these three witnesses could have been discovered prior to trial with due diligence. There’s more:

Karazin said [trial attorney Michael "Mickey"] Sherman did not ask for a ruling during the trial about [state inspector] Garr’s book deal, calling the move “either a lack of due diligence or a strategic decision.”

Skakel’s attorneys also said the state failed to hand over reports on other suspects and a sketch that they said resembled an early suspect.

But Karazin noted that the state Supreme Court found that Skakel’s defense was aware of the reports and the sketch during the trial, but failed to make a timely request for them.

So this brings me to my second thought. Judge Karazin’s description of several of the claims raised by Skakel made some habeas petitions I’ve seen seem meritorious.  An appeal, probably forthcoming, seems unlikely to result in a reversal of Judge Karazin’s ruling.

On the other hand, there seems to be plenty of evidence that Mickey Sherman was pretty ineffective in representing Skakel. So why not go straight to the habeas corpus court one might wonder.

I think it might have something to do with getting yet another court to document the shortcomings of Mickey Sherman’s representation of Skakel. Clearly, it is a topic of discussion in news reports.

This strategy (if indeed it is a strategy) carries some pitfalls, though. Like yesterday’s opinion from the Appellate Court and a few lines from Judge Karazin’s decision, there is always the (great) likelihood that such a court would include throwaway statements that effectively preclude habeas relief. The appellate courts are only too happy to do that: “Cumulative”; “wouldn’t have made a difference”; “evidence was extremely strong”; “harmless error” are some examples.

Judge Karazin uses a few: “admissible but not credible”and “lack of due diligence or tactical decision”.

All in all, I think Skakel might have been better served by filing a petition for Writ of Habeas Corpus instead of the petition for new trial, but I’m just me and that’s why they pay Santos & Seeley the big bucks.

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:

• The Innocence Myth

Technorati Tags: innocence, wrongful conviction

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