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Looks like I wasn’t the only one who had prosecutorial ethics on my mind this past week. From Grits, Dallas DA Craig Watkins has about had it with these exonerations and wants to do something about it. His proposals are serious.

“Something should be done,” said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. “If the harm is a great harm, yes, it should be criminalized.”

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

And he has reason to be considering such harsh penalties. Texas has already paid $8.6 million since 2001:

Of the 45 wrongful-conviction cases for which the state has paid compensation, at least 22 of them involved prosecutors withholding evidence from the defense: 19 in the infamous Tulia drug convictions and three of Dallas County’s DNA exonerations. The remainder of the payouts involved exculpatory DNA evidence or other flaws.

The article notes the paucity of sanctions against prosecutors who withhold evidence - one of the only example given is the only case in recent history where a prosecutor was disbarred: Mike Nifong in the Duke lacrosse case.

But as can be expected, there are other prosecutors who take an opposing view. John Bradley, a prosecutor in Williamson County near Austin calls Watkins’ proposal “ridiculous” and “an overreaction”.

What’s ridiculous is that innocent people spend decades in prison and the prosecutors that withheld evidence to put them there don’t get as much as a slap on the wrist. Prosecutors have a duty to do justice and to seek out the truth. To turn a blind eye when they neglect that duty and in fact take affirmative steps to circumvent justice is a big f*ck you to the whole system.

There’s absolutely no reason not to have a mandatory grievance process, at the very least, for prosecutors who intentionally withhold Brady or Giglio material.

The Innocence Project of Texas, a nonprofit legal clinic that worked to free many of the Dallas County exonerees including Mr. Woodard, supports criminalizing Brady violations. Michelle Moore, a board member of the Innocence Project and a Dallas County public defender, said that doing so would reduce the number of violations.

“If he can do 27 years behind bars,” she said of Mr. Woodard, “the prosecuting attorney can face time for hiding evidence.”

Damn straight he can. I know some prosecutors read this blog. What do you think of Watkins’ proposal? Would you be in favor of something like this in your State? If not, why not?

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?

Just to show you how skewed the priorities of legislators are, let us compare two bills side by side.

On the left, we have the eyewitness id reform bill and on the right, the “collect DNA from the innocent” bill.

One is clearly needed, the other could be a significant violation of due process. (Yes, I do know that some states have held such DNA collection to not be a violation of the 4th. I disagree with them.)

As EyeID points out, the bill, while missing some legs, would have been a significant step in the right process. Alas, it was not to be. However, the esteemed legislators have deemed it worthy to collect DNA samples from people arrested of crimes. The argument behind this piece of legislation is that collection of DNA at the time of arrest would permit law enforcement to solve more crimes…because, you know, if you’re arrested, then you’ve probably committed a crime in the past.

Another rationale put forth by the State [pdf]- and I do love this - is that collection of DNA at the time of arrest would not only serve to solve unsolved crimes, but also prevent wrongful convictions.

The irony here, lest it be lost on you, is that the very same State opposed [pdf] the eyewitness ID reform bill, when DNA exonerations have shown that in 75% of wrongful conviction cases faulty IDs have been the culprit. Apparently, in eyewitness ID reform, there is a “pilot program” and the “jury is still out” on whether sequential or simultaneous lineups are better. Yes, you read that right. Apparently, no one knows how to use Google. There is some heavy citing of the Mecklenburg Report, which permits law enforcement to continually bury its head in the sand. The State’s testimony then quotes Gary Wells out of context (I’ve read about this being done in other states too) and ignores his response to this misquoting (I’m going on memory here - I’m sure the guys at EyeID know what I’m talking about - or if I’m imagining this whole thing, I’ll take it down).

The CT Public Defender’s response to the EyeID bill is here and to the DNA bill here. All the testimony submitted on these bills is available here.

On a positive note, the committee did pass the probation reform bill, which I discussed previously.

All the bills reported out of committee by last night’s deadline are here. For example, here’s a bill “encouraging” bar owners to install breath alcohol testing devices. Here’s a bill making it illegal to hang on a noose on public property, or private property without the consent of the owner.

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.

Via CDW comes this fantastic new paper by Jules Epstein, which examines the problems with eyewitness identification testimony and the short-comings of using cross-examination to challenge it. It is a must read for the practitioner. The first 40 pages or so trace the history of eyewitness identification and of cross examinations and their place in our adversarial system. Then it underscores the need for expert testimony in eyewitness ID cases by shattering the myth propagated by judges and appellate courts that cross-examination will bring out any untruths.

That is because, often, eyewitness testimony does not contain untruths. The problems associated with eyewitness testimony are such that it is nearly impossible to expose them on cross.

1. Cross racial IDs: How does one go about questioning a witness regarding this sensitive issue, which has been demonstrated to be a serious problem in identifications? One cannot simply ask a witness if he/she is better at identifying people of their own race or if they are aware that studies show that such a bias exists.

2. Weapons focus:

The entire premise of weapons focus is that it is often a subconscious phenomenon—without realization of the occurrence, the witnesses’ eyes are drawn toward the weapon. It is precisely the extent to which the witness is unaware of the diverted attention that cross-examination proves ineffective.

This might be the only area where it is possible to do something on cross. As the example in the paper illustrates, the cross can elicit significant details about the weapon, thereby proving (or sowing seeds of doubt) that the witness was not focused on the face, but rather on the weapon.

However, the problem still remains that many jurors believe that a weapon increases attention overall and makes the eyewitness more reliable.

3. Stress: One can easily prove the fact of stress, but it is almost impossible to prove the impact or consequence of stress via cross. These are scientific results and ideas that cannot be elicited through the lay witness on the stand and often-times, the witness will use stress to affirm their recollection.

4. Memory Retention and the Confidence-Accuracy disconnect: This is another one that’s impossible to establish on cross. Asking a witness whether their memory has gotten worse over time and that just because they think they’re right doesn’t mean they’re right will result in them simply re-affirming their identification.

5. System variables (sequential lineup, double-blind, etc.): What can be established via cross is the occurrence of imperfect ID procedures, but not the significance, as with stress above. So the witness was not told that the suspect may or may not be in the lineup. What does it mean to the reliability of the ID? How are you going to get that out on the cross of anyone, including the cop?

So what is to be done? One method - the example used in the paper - is the one I prefer. To go over the events in a chronological order, breaking it down into tiny, tiny bits. One piece of information at a time.

Of particular importance is the technique of “time-framing”—the art of breaking the event or crime into a series of discrete acts, each in isolation.

I’d like to hear from you, my practitioner reader. What have you found useful? Has anything worked at all? I seriously doubt we’ll ever get the “aha!” moment during the cross of an eyewitness.

What I think this paper does is gives us a roadmap to arguing the admissibility of expert testimony. The offer of proof is one thing, but setting up why it is necessary goes a long way to informing the judge that he/she should admit the testimony. This paper lays out all the reasons why it is necessary to inform the jury of the pitfalls of eyewitness testimony. Use it. Even if you don’t get the expert testimony in, it gives you leverage to argue to the judge that you need to either ask jurors about it or be able to argue some of it in closing and have the judge give a detailed instruction on the fallibility of eyewitness testimony.

I’ve uploaded it here [pdf]. It’s available for free from SSRN, so I figured I could make it available here too. If that’s a problem, someone let me know and I’ll take it down.

(Courtroom sketch: Wired News/Norman Quebedeau)

In my post discussing the demise of Miranda, I approvingly quoted the author’s mention of videotaping confessions as a possible solution. Scott writes today and warns us not to get too invested in videotaped confessions and why they may not be the answer. He is correct in that videotaped confessions are not very helpful and may end up providing the final nail in the coffin of a factually innocent defendant who goes to trial.

Scott’s post seems to focus only on confessions, as opposed to videotaping the entire interrogation(s). That’s the mistake. If we tape the entire interrogation instead, though, these reservations may not exist. Here’s a report from The Justice Project which argues that entire interrogations must be videotaped. After all, it is the interrogation that Miranda seeks to safeguard. So why should its “replacement” focus only on the confession?

It is the interrogation that needs to be videotaped to provide a complete picture of the voluntariness of a confession. Of what use is a confession only? That is principally the same as a written statement. By that point, the defendant has been broken down and tricked, cajoled or threatened into confessing. If he seems resigned on videotape while delivering his confession, it may be a product either of his guilt overwhelming him or of fatigue and submission.

A google search for videotaped interrogations provides a wealth of information: some as far back as 2002 from Chicago and some more recently from California.

There is, of course, the initial hurdle of resistance from law enforcement to overcome, but as with lineup and ID procedures, the wall is slowly starting to crumble. As of April, 2006, there were 450 law enforcement departments nationwide that required videotaping of interrogations. From Northwestern Law, here [pdf] is a list of agencies in the country today employing some form of videotaping and here [pdf] is a fantastic report (that I intend to read in-depth) from 2004 chronicling police experiences with videotaping interrogations. The New York County Lawyers’ Association has published this report [pdf] calling for interrogations to be videotaped. It analyzes statutes and regulations in various states.

In Connecticut, a pilot program was approved last year for certain jurisdictions. I haven’t heard anything about it or how it is working. Anyone who knows want to chime in? Did any jurisdictions actually sign up for the pilot program? [Previous coverage here and here.]

Once concern from law enforcement is that it may be difficult to videotape interrogations in all circumstances. I don’t think that’s true. If a suspect is arrested in a remote area, cops have two options: (1) use the in-car video system or (2) wait till you get to a police station. What am I missing here?

If the entirety of an interrogation is recorded - videotaped - then it certainly would give the viewer an accurate picture of the voluntariness of an eventual confession.

The only obvious problem that I can see is defining when such a recording must commence. Is “custody” too late in the game? What if there is an audio recording of initial contact and then video recording of an interrogation? I guess the answer will depend on what studies show to be first time that coercive tactics are used. I haven’t done enough research to provide a reasonable answer, but I think it is one that can be answered.

Videotaped interrogations may not be a panacea, but I think they will be a hell of a lot better than what we have now.

photo credit: werewegian

James Tillman, who was exonerated in 06-07 after serving 18 years in prison for a crime he didn’t commit, can look at this news story and see the face of the man who should have been in his place.

Hartford police have obtained an arrest warrant for Duane Foster, 47, on charges of first-degree kidnapping.

Hartford police Detective Michael Sheldon, investigators at the chief state’s attorney’s cold case unit and state Department of Correction officials announced on Thursday that a DNA match links Foster to the Jan. 22, 1988, sexual assault on Charter Oak Avenue.

The rape victim identified Tillman, then 26, as the attacker. He and Foster are of similar height and build and have similar facial features.

You decide:

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.

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.

See, I told you there was so much I had missed in just one day.

EyeID points to this article about two upcoming studies on wrongful convictions:

The first, “Judging Innocence”, is soon-to-be-published in the Columbia Law Review, conducted by University of Virginia Professor Brandon Garrett. Professor Garrett’s study systematically examined all of the DNA exonerations and concluded that “the leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time. In a quarter of the cases, such testimony was the only direct evidence against the defendant.” Other leading causes of wrongful convictions were faulty forensic evidence, unreliable snitch testimony and false confessions.

You must read the study [pdf] to get the full sense of the various problems found. Here’s a sample:

There were false confessions in 16 percent of the cases, with two-thirds of those involving defendants who were juveniles, mentally retarded or both.

Here’s the zinger:

Garrett’s study strongly suggests, then, that there are thousands of people serving long sentences for crimes they did not commit but who have no hope that DNA can clear them.

The second is by Professors Samuel Gross at Michigan Law School and Barbara O’Brien of Michigan State. It, too, reached similar conclusions. Specifically:

“The main thing we can safely conclude from exonerations is that there are many other false convictions that we have not discovered,” the Michigan study said. “In addition, a couple of strong demographic patterns appear to be reliable:

Black men accused of raping white women face a greater risk of false conviction than other rape defendants; and young suspects, those under 18, are at greater risk of false confession than other suspects.”

CapDefWeekly has more. Grits has a lot on snitching. Scott Greenfield feels vindicated. I will have more on this later.

Update: More from The Courant:

“We’re asking for $5 million, which we think is reasonable under the circumstances given the potential for litigation and the injuries James has suffered,” Smyth said. “It’s a substantial amount of money, but he lost the prime years of his life and we think it’s fair to him and to the state.”Smyth said the $500,000 tax-free payment Rell offered as reparation last week amounts to about $27,700 for each year Tillman was imprisoned. The prevailing rule of thumb in such settlements, Smyth said, it about $1 million for each year of incarceration.

Original Post: James Tillman, recently exonerated after spending 18 years in prison for a crime he did not commit was offered $500,000 by the Governor during her recent budget address. Tillman, though appearing thankful at the time, also made the comment that he’d have to talk to his lawyer about whether to accept the offer.

Talk to his lawyer he did. He is now seeking ten times that amount: $5 million dollars in damages. His attorney, Gerard Smyth said that $500K is not enough to compensate for that lost time.

Is it? How does one put a monetary value on the number of years spent in prison when you should have been living free in society? Anyone have any ideas on a good way to come to a dollar amount?

As per this General Assembly study, the estimated cost per year per inmate is $35,000. The state has spent (approx.) $630,000 on Tillman’s incarceration thus far.

Meanwhile, in 2005, the median personal income of full-time workers aged 25 and above was $39, 509. The median income of African-American full-time workers aged 25 and above was $32, 021. Over 18 years (and yes, I’m not taking into account AAV/inflation), the range of what Tillman reasonably might have earned were he employed full-time was $576,378 - $711,162. Then you have to add in the intangible costs - the excruciating existence in prison, the emotional and societal anguish…

$500K may be on the lower end of what they should offer. Feel free to offer up your own thoughts.