Thursday, August 02, 2007

Wrongful vs Unlawful Convictions

Richard Moran, a professor of sociology and criminology at Mount Holyoke writes (subscription required) in the August 2, 2007 New York Times, "My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel."

The issue recently made headlines when the FBI admitted framing four men in the murder of gangster Edward Deegan. The four innocent men were convicted over 30 years ago. Only two survived to regain their freedom. The cost to taxpayers: $101.7 million dollars. The loss of freedom for those men and their families: beyond measure.

The significance of Moran's research, though, is that we often wrongly conclude that what he calls unlawful convictions are simply the results of honest errors rather than malice. Our failure to call such convictions unlawful shields the guilty parties from the consequences that could reduce such miscarriages of justice.

Monday, July 23, 2007

Wrongful Convictions and Evidence Procedures

This week the Denver Post is running a special feature on the mishandling and misuse of evidence. The focus primarily deals with the inappropriate destruction of DNA evidence that might reveal the actual perpetrator of a crime and exonerate someone wrongly convicted of it. The success of the Innocence Project in using such evidence is widely known. What is not known is how long it will take for authorities to refocus their efforts on finding the truth in questionable convictions rather than covering up their own misjudgments. Today's installment reports that "in 1997, the clerk in Harris County, Texas, threw out 50 rape kits days after then- Gov. George W. Bush pardoned Houston's Kevin Byrd from a wrongful conviction exposed by DNA tests."

Sunday, June 17, 2007

Will Mike Nifong Pay the Piper?

Disgraced and now disbarred, Mike Nifong, the nefarious prosecutor in the Duke lacrosse case, may (and should) face further sanctions. USA Today reports he may face a criminal investigation. About time. The real scandal, though is how many prosecutors never face consequences for violating the public trust. Bill Peterson, the Ada, Oklahoma, district attorney exposed in John Grisham's book Innocent Man, continues to practice law as the District Attorney in Ada, even though he admits to his role in sentencing an innocent man to death. On his web site, Peterson says, "I cannot change the reality that two men were convicted of a crime they did not commit." He neglects to say that had he exercised a bit of diligence and common sense while representing the people of Oklahoma, he could have prevented the wrongful conviction in the first place. The cavalier arrogance of prosecutors more concerned with the appearance of justice rather than the pursuit of justice is, simply, against the law. Prosecutors, as representatives of the people, are charged with seeking truth and justice rather than simply convictions. When their ethical compass becomes obscured by ambition, a polictical agenda, or just mean-spiritedness, they need to face consequences. They need to pay the piper.

Monday, June 11, 2007

More on the Wrongful Conviction Rate

Samuel R. Gross, the Thomas and Mabel Long Professor of Law at the University of Michigan, writes in today's LA Times:

If 1% of commercial airliners crashed on takeoff, we'd shut down every airline in the country. That would be nearly 300 crashes a day. If as few as 1% of criminal convictions are erroneous, right now there are more than 20,000 innocent defendants behind bars.

But 1% seems like a low number based upon his research. At least 3.3% of those convicted of murder were innocent. How many were wrongly convicted of lesser crimes for which there is less scrutiny? How many innocent people, fearing the possibility of a wrongful conviction, much less the wanting to avoid the expense of a trial or time lost while unable to make bail, have copped pleas? How much are we paying to incarcerate the innocent?

Monday, May 28, 2007

A Roll of the Dice

Those who research wrongful convictions have widely acknowleged the challenge of getting good statistics on the frequency of wrongful convictions. See "Wrongful Convictions and the Accuracy Of the Criminal Justice System" by H. Patrick Furman, and "Convicting the Innocent: An Empirically Justified Wrongful Conviction Rate" by D. Mcichael Risinger.

Risinger points out that the results of the Innocence Project provide a window of opportunity for empirical research on the wrongful conviction rate, at least as it applies to capital and other serious crimes where DNA evidence is available. Furman acknowleges the importance of such research, but raises an important consideration: can we expect the rate of wrongful conviction to be same for less serious crimes?

Peter Neufeld of the Innocence Project has had his faith shaken by the number of wrongful convictions uncovered. In an interview with PBS's Frontline, he says,

I always thought, my whole life I've been practicing law, especially as a criminal defense attorney that 98%, 99% of the people convicted by juries and judges must be guilty. And now I look at this new data which shows that with DNA testing they're exonerating 25% of the people accused in sexual assault cases and I'm completely freaked out by the number because it tells me that the number of people who are unjustly convicted in our system is extraordinarily high, is a number that we as a democracy can't live with, is a number that I want to do everything that I can to change.

Perception as well as empiricism, of course, is important in considering the level of accuracy in our justice system. What do the lawyers and judges think? How are their thoughts revealed in their language?

As we endured the investigation and trial of our son, we were shocked to hear professionals in the criminal justice system refer to a jury trial as a "roll of the dice." How, we wondered could trial by one's peers, something so valued in American culture be compared to a game of chance. When the verdict in our son's case arrived, we understood.

Moreover, the use of the phrase "roll of the dice" tells us that those in the best position to see how the system works have known its shortcomings for a long time.

Saturday, May 26, 2007

Judge Morris Hoffman and the Wrongful Conviction Rate

Since the publication of his op-ed piece in the April 26 Wall Street Journal, Morris Hoffman's claim of an astonishingly low wrongful conviction rate (0.00065 %) has been embraced by some as an indication that we should simply stop worrying so much about wrongful convictions. Close readers of Hoffman's article--and those who actually passed 5th grade math--should be cringing at the starting assumption of Hoffman's calculation: that 20% of all trial verdicts are wrong.

Hoffman reduces the 20% number to .00065% by dividing the 20% by the enormous number of cases that are plea-bargained.

For those who have rejoiced at Judge Hoffman's conclusion that wrongful conviction is rare, let me ask: Is a 20% error rate at trial acceptable?

Hoffman mentions parenthetically that innocence projects fail to mention cases where defendants are wrongfully acquitted. What he fails to note is that a wrongful conviction is really an especially pernicious kind of wrongful acquittal. Remember that when a crime is committed and the wrong person is convicted, the actual perpetrator goes free--something that should outrage all who are concerned about victims' rights.

The problem of wrongful conviction is one that should concern all thinking citizens of all ideological stripes.

Tuesday, April 24, 2007

200 Exonerated by Innocence Project

The Innocence Project has produced a pamphlet that tells the stories: 200 people wrongly convicted, imprisoned, many facing death.

The tragic truth revealed by the Innocence Project is that our criminal justice system gets it wrong. And remember, for each wrongly convicted person, a guilty party may go free.

Every one of those exonerated by the Innocence Project had been charged and convicted of the most serious crimes. You'd think that if the system got anything right, it would be the serious crimes.

One of the great disappointments during the tragic journey our family has been on is that those in the legal profession know how inaccurate the system is. They often refer a jury verdict as a "role of the dice." How terrible, I thought upon this, that such a cherished American tradition would be degraded to a game of chance. Sadly, though, that is the case, and it will continue to be the case until we can hold prosecutors accountable for unethical actions, and until we improve juror education and training.

Monday, April 16, 2007

Jurors and the Presumption of Innocence and Reasonable Doubt

Where has reflection and thoughtful analysis gone? Certainly, it's not modeled on TV. There's money and ratings in being cock-sure. Consider the popularity of CNN's own prosecutor-in-residence Nancy Grace. Jon Stewart provides some insight on this former prosecutor's ability to look at the evidence rationally:

So, should it be surprising that jurors often don't understand what presumption of innocence and reasonable doubt mean?

Though few jurors have spoken publicly about their decision process in Todd's case, the remarks of one, who chooses to remain anonymous, are enlightening and shocking:

Here's the transcript of the operative soundbite reported by Brian Arnot:

Q: Do you think beyond a reasonable doubt that he did do it?

Juror: I don't know....

Beyond reasonable doubt? Presumption of innocence? Now add to the obvious frustration rule of evidence 606(b): Such statements by jurors are inadmissable in court, and cannot be considered when reviewing a case on appeal.

Thursday, April 12, 2007

The rush to indict

The DA charged Todd with murder four days after the stabbing. It would still be another three months before the forensic evidence would be sent to the state lab. It would be a half year before the lab completed its serology report. Months more would pass before any DNA analysis would be performed. Almost a year would pass before the DA requested the metro forensics unit in Colorado Springs to produce a crime scene analysis. Over thirteen months would pass before that report was released. It would say that a second person at the crime scene, the only person seen fighting with the victim, the person who, unlike Todd, was covered with the victim's blood, could not be eliminated as an assailant. By then the DA had already cut a deal with this likely assailant, had placed him beyond prosecution. The DA cut him a deal two months before the state crime lab had even opened the evidence packets in the case.

Today the news is filled with the Duke rape case. The New Times (12 April 2007) reports the conclusion of North Carolina's attorney general Roy A. Cooper:

“In this case, with the weight of the state behind him, the Durham district attorney pushed forward unchecked,” said Mr. Cooper, who took over the case in January. “There were many points in the case where caution would have served justice better than bravado. And in the rush to condemn, a community and a state lost the ability to see clearly.”
Bravado is seductive for the ambitious politician, and many prosecutors are politically ambitious. When faced with the trade-off between using the time it takes to get it right and the advantages of exuding action and decisiveness, ambition can tip the scale away from caution, away from truth. The premature indictment becomes an article of faith for the prosecutor who now needs to assert infallibility as well as decisiveness. It now steers the subsequent investigation. The goal: eliminate alternate suspects, avoid forensic tests that may be problematic to the case, conceal information that might help the accused. The new imperative is not "let justice be done"; rather, it becomes: "win the case."

Reade Seligman, the recently exonerated Duke lacrosse player, described the experience:

“This entire experience has opened my eyes up to a tragic world of injustice I never knew existed,” Mr. Seligmann said. “If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they’d do to people who do not have the resources to defend themselves. So rather than relying on disparaging stereotypes and creating political and racial conflicts, all of us need to take a step back from this case and learn from it.

“The Duke lacrosse case has shown that our society has lost sight of the most fundamental principle of our legal system: the presumption of innocence.” (from the New York Times, 12 April 2007)

The loss of the presumption of innocence: all Americans should shudder.