innocence
DNA Exoneration FTW
Dec 19th
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
Nov 11th
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
Nov 3rd
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
Oct 31st
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
Oct 24th
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…
Oct 20th
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
Aug 27th
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
Apr 14th
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
Apr 13th
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?
Apr 9th
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
Mar 17th
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.
The runaway governor: truly scary justice “reforms”
Feb 7th
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.
Why justice has nothing to do with a conviction
Jan 21st
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.
When the black box is opened
Nov 15th
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.
Lost evidence in the age of DNA
Nov 11th
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.
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