Awareness Test

If you should sit on a jury, you will likely find yourself having to consider eyewitness testimony. How much faith should you put in it? The Innocence Project lists faulty eyewitness testimony as a leading cause of wrongful convictions. Remember that law enforcement personnel are in their own way witnesses, remembering what people say to them, how they respond with body language, details from a crime scene. How accurate are our perceptions? How aware are we? How aware are you? Click the video below and take the test:

Supreme Court Protects Prosecutors

The LA Times reports that the US Supreme Court has broadened the protection afforded prosecutors to further limit their responsibility when they convict innocent people. Here's a part of the article:

Reporting from Washington -- The Supreme Court on Monday threw out a lawsuit by a Los Angeles man wrongfully convicted of murder and gave district attorneys a broad shield against being sued even if their management mistakes send an innocent person to prison.Thomas L. Goldstein, a former Marine convicted in a 1979 shooting in Long Beach, spent 24 years in prison largely on the word of a heroin addict who had worked as a jailhouse informant for police and prosecutors. Edward F. Fink lied on the witness stand when he denied receiving a benefit for testifying for police, a judge found.

Goldstein was freed in 2004, and he sued former Los Angeles County Dist. Atty. John K. Van de Kamp and top deputy Curt Livesay, contending they allowed prosecutors to regularly use jailhouse informants and did not take steps to make sure they were telling the truth.

In Goldstein's case, the trial prosecutor did not know Fink was lying because other prosecutors in the sprawling district attorney's office did not share information.The Supreme Court mostly set aside the facts of Goldstein's case and focused on the potential harm of allowing top prosecutors to be sued. District attorneys who are managing teams of prosecutors should not face the fear they might be sued years later by resentful suspects, the justices said.

In the past, the court said trial prosecutors were entitled to absolute immunity for their courtroom work. In Monday's ruling in Van de Kamp vs. Goldstein, the high court extended that shield to cover district attorneys and other chief prosecutors for any actions that involve prosecutions and trials.

Last year, the U.S. 9th Circuit Court of Appeals in San Francisco said top prosecutors could be sued for "administrative" failures. The decision rejected Van de Kamp's claim of immunity and cleared Goldstein's lawsuit to proceed. But the Supreme Court rejected the distinction between administrative and management tasks and said management of trial-related information was a prosecution function.

Read the full article at http://www.latimes.com/news/nationworld/washingtondc/la-na-supreme-court-prosecute27-2009jan27,0,280362.story.

DNA Preservation

The Denver Post reports this week that state prosecutors support a bill to "fix" a requirement imposed last year to preserve DNA evidence associated with crimes. This "fix" needs a close look.

The Innocence Project of Florida has taken note and offers the following commentary:

An article in the Denver Post today details a move by the District Attorney to limit the rules requiring the preservation of DNA evidence.They are now, they say, "too sweeping to be practical," a charge which I find hard to believe. I would imagine that, were a police officer to err on either side, they would choose to err on the side of having too much evidence.

House Bill 1121 would change the law so authorities have to preserve DNA evidence only in the case of felonies or sexual-assault cases and only when that evidence could be relevant to a disputed issue in the case.The bill does, however, leave some checks in place, such as...requiring a hearing before discarding evidence and requiring evidence in murder and rape cases to be stored for the life of the defendant. Judicial oversight before the destruction of evidence is an important, yet necessary, inclusion in the bill. (That is, I can't imagine the police being granted the authority to destroy evidence on their own.)

As for the list of crimes with which the bill is concerned, I find it lacking. Rapes and murders will almost always have biological evidence involved, but a list that contains just those two crimes is far from comprehensive. Any crime in which the perpetrator leaves biological evidence that could be tested to reveal their identity is a case in which that evidence should be preserved. It's conceivable, for example, that DNA could be an issue in assaults, robberies, burglaries, and other crimes as well. Ted Tow, executive director of the Colorado District Attorney's Council, furnished an example of when it would be "impractical" to retain DNA evidence from a crime:

"There's a bar fight with 27 witnesses. It's not a whodunit," Tow said. "Pretty much anything anybody comes into contact with" is being stored under the current legislation.

This might seem like a good point, but it's a bit of a straw man. Every chair, railing and table that gets touched might not need to be preserved, but certainly the broken glass bottle wielded as a weapon, or the bloodstained shirt of the victim. Those seem like awfully probative pieces of evidence. Keep in mind, if the DA had their way, they would retain none of this evidence, since a bar fight is not a rape or a murder. The fact that there are 27 witnesses makes this hypothetical a bit amusing, but we should remember that witness testimony has certainly proven to be problematic before.

What happens when there's only 3 witnesses, or as many as 9 witnesses, as in the case of Troy Davis in Georgia, in which seven of the nine eyewitnesses recanted after the fact?

DNA is a powerful scientific tool used both to convict and exculpate suspects. Its importance and probative value can hardly be understated, but we hamstring ourselves as a society if we begin destroying biological evidence before it is
tested.

A Challenge for Obama

From Bill Moyers Journal:

For the first time in history, more than one in every 100 adults in America is in jail or prison that's 2.3 million people. One reason? The leader of one organization working with prisoners' families told "Sojourners" that "The education system, particularly for inner-city youth where the bulk of our prisoners come from, is abysmal."

That statement sent me looking for a copy of Barack Obama's memoir "Dreams from My Father". I had met Obama just once, many years ago, when he was a community organizer in Chicago. Later, when I first read his book, I had been impressed that he was writing about what we had talked about the day of our visit. Here's the passage that stood out, describing his experience coming back to Chicago after his graduation from Harvard Law School:

"Upon my return to Chicago, I would find the signs of decay accelerated throughout the south side, the neighborhoods shabbier, the children edgier and less restrained, more middle-class families heading out to the suburbs, the jails bursting with glowering youth, my brothers without prospects. All too rarely do I hear people asking just what it is that we've done to make so many children's hearts so hard, or what collectively we might do to right their moral compass, what values we must live by. Instead I see us doing what we've always done, pretending that these children are somehow not our own."

That's the reality, crouched at Obama's door. Our door. Far too many members of this extended family, locked away, poor and in prison. So think of Chicago's South Side as a metaphor for our country today, a post-inaugural reminder, one of those stubborn facts of millions abandoned by the very democracy we celebrated on Tuesday.

All those years ago, I thought, this young man Obama had seen the world as it is. If he is not swallowed into the belly of the beltway beast, devoured by the conceits of power, the temptations of empire, and the courtiers, climbers, and predators who feed on it and if he can make this a family affair, he just might begin to change what he saw.

Moyers might have pointed out that beyond the 2.3 million people incarcerated, there are an equal number under some form of supervision, such as parole or probation. Assume that each of them has 10 family members or friends, and a simple calculation yields 48 million Americans directed affected.

You can watch this edition of Bill Moyers Journal online.

Some provoking comments from http://sentencing.typepad.com/sentencing_law_and_policy/:

What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or lots of other distinctive aspects of the modern American criminal justice system? I ask this question because I keep thinking about these two sections of President Obama's Inaugural Address:

On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord. On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics. We remain a young nation. But in the words of Scripture, the time has come to set aside childish things. The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness....

As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man -- a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience sake.

I strongly believe that the most disturbing aspects of modern criminal justice systems reflect choices by many in government to choose fear over hope and to readily give up "our ideals" concerning freedom and liberty because doing so seems expedient in light of "false promises" and "worn-out dogmas" of purported perils that threaten "our safety."
Ironically, some of our ideals concerning freedom and liberty still light the world even though they have been given up at home. No other country in the world incarcerates nearly as many people as does the US, and many nations in Western Europe take pride in their low imprisonment rates. Many countries reject as inhumane the punishment of life without parole for any offender, while the US continues to condemn even juvenile offenders to never having a chance to live outside a cage. Sadly, I could go on and on, but let me here just encourage readers to add more examples of criminal justice choices that seem to sacrifice our ideals in the name of safety.

Valuably, we have already seen President Obama's commitment to give meaning to his words through his executive orders that, as described in this article, will "close the Guantanamo Bay detention camp within a year, permanently shut the CIA's network of secret overseas prisons and end the agency's use of interrogation techniques that critics describe as torture." But, now that the President and his Administration have showcased a commitment to our ideals in the face of foreign threats, I hope he will turn at least some attention toward what our ideals and "our better history" means for domestic crime and punishment.

As I have suggested before, President Obama could give effect and impact to his inspiring words about "out ideals" through a few clemency grants or an executive order calling for a review of the massive increase in the size and costs of the federal criminal caseload (which, as discussed here, was recently documented by the US Sentencing Commission). A little action to back up his rhetoric on the home front would go a long way toward giving me hope that false promises, worn-out dogmas and fear are among the childish things that the new President is truly prepared to put away.

Visiting Day

Last Sunday's New York Times Magazine featured a touching story by Binnie Kirshenbaum. She writes about a train trip to visit her mother, but the trip takes her through psychological as well as physical terrain. On it she has an epiphany: for some visiting a mother is far different than her trip, which will include brunch and browsing antiques. Far more people than she realized will visit their mothers in prison. Over one percent of our nation's citizens are incarcerated. If each one has on average 9 friends and family members, that means that 10 percent of America is touched by this high level of incarceration. Those not so directly affected suffer, too, through the expense of incarceration and its ineffectiveness.

Martin Luther King wrote these words from the Birmingham Jail in 1963:

"An injustice anywhere is a threat to justice everywhere."

Pastor Martin Niemöller recalled the Nazi terror of WWII with these words:

In Germany, they came first for the Communists,
And I didn’t speak up because I wasn’t a Communist;

And then they came for the trade unionists,
And I didn’t speak up because I wasn’t a trade unionist;

And then they came for the Jews,
And I didn’t speak up because I wasn’t a Jew;

And then . . . they came for me . . .
And by that time there was no one left to speak up.

Raising our voices against injustice may be the most important thing we do.

The Burgeoning Prison Population

The United States imprisons more people than any other country in the world. More, even than China with a population five times our own. Here's a simple video that describes how the land of the free is fast becoming the home of the imprisoned.



This mass incarceration is bad for everyone. The moral issue aside, the stress on the prison system is devouring state budgets. Programs to reduce recidivism are being cut. Prisoners are being subjected to conditions that are, simply, inhumane in many cases. And it is giving rise to a prison-industrial complex that can only further diminish our common humanity.

Humanity for Prisoners

Doug Tjapkes, who runs the non-profit organization known as INNOCENT and Humanity For Prisoners, has worked tirelessly to support individual prisoners and to promote enlightened reform in our criminal justice system. The goals of his organization are clear. The organization is:

• Seeking rightful resolutions to wrongful convictions;
• Advocating appropriate release for inmates who have served prescribed time;
• Defending the constitutional right to receive adequate prison medical care;
• Pursuing compassionate action on behalf of prisoners facing imminent death;
• Considering assistance for other prisoners with critical needs;
• Facilitating reentry, when possible, for freed prisoners; and
• Mentoring understudies so that our mission may continue!

Doug, in a recent statement provided this amplification:

• Seeking rightful resolutions to wrongful convictions
  WE DO NOT believe that all prisoners are innocent. Prisons are there for a very important reason: many criminals are not fit to roam freely among society.
  WE DO believe that there are many innocent people in prison. Some estimates range as high as 15%, while a New York Times article placed the figure more like 3%. Only someone wearing blinders could think that a judicial system is right 100% of the time. Among Michigan's 50,000 prisoners, 1,500 innocent inmates, in our opinion, is an unacceptable figure!
• Advocating appropriate release for inmates who have served prescribed time
  WE DO NOT believe that every prisoner eligible for parole deserves parole. Many more factors must be considered in order to protect society.
  WE DO believe that if approximately 20% of Michigan's prisoners are eligible for parole, there must be some in that group who deserve to be released.
• Defending the constitutional right to receive adequate prison medical care
  WE DO NOT believe that prisoners deserve regular treatment at the Mayo Clinic.
  WE DO believe that if a prisoner has broken a tooth and is suffering the excruciating pain of an exposed nerve, he should not have to wait three months for a dental appointment.
• Pursuing compassionate action on behalf of prisoners facing imminent death
  WE DO NOT believe that just because a vicious criminal is dying, he deserves freedom.
  WE DO believe that even the most vicious criminal, at the time of death, is not a threat to society, and perhaps arrangements could be made for him/her to spend final hours in a hospice with immediate family members nearby.
• Considering assistance for other prisoners with critical needs
  WE DO NOT believe that a prisoner deserves all of the luxuries and benefits of the free. That defeats the reason for incarceration.
  WE DO believe that if, for example, a prisoner's wife who is not an American citizen faces deportation because of a technical glitch, we should try to help if we can.
• Facilitating reentry, when possible, for freed prisoners
  WE DO NOT believe that all freed prisoners are saints.
  WE DO believe that if the freed prisoner can be assisted in learning how to reenter society, in finding a job, and in finding a decent place to live, there is a better chance that he/she will not return to prison.

To learn more visit http://HumanityForPrisoners.org. And read Doug Tjapkes's book Sweet Freedom, an inspiring story about how Maurice Carter was freed after serving 28 years for an armed assault he'd had nothing to do with.

If you have 10 minutes to give, take a look at the following video from an address Doug Tjapkes gave in Toronto:

To further Doug Tjapkes's work, consider supporting his organization by going to the fundraising page at http://www.change.org/innocent/projects/fundraising/humanity_for_prisoners.

When Truth Meets Arrogance

Take a look at this short video featuring John Grisham, author of The Innocent Man.

Note: Bill Peterson, the DA who wrongly convicted Williamson and Fritz continues as the District Attorney in Ada, Oklahoma.

The Center for Wrongful Convictions

Take a few minutes and watch this video from the Center for Wrongful Convictions at Northwestern University. Note the chilling statistic that of the 289 men and women sentenced to death in Illinois after it reinstated capital punishment in the mid seventies, by 2003, six percent had been exonerated.

What happens to prosecutors who pursue the innocent?

Maybe, they'll be nominated to the US Senate.

Embattled Illinois Governor Rod Blogojevich's recent pick of Roland Burris to fill Barack Obama's vacated Senate seat demonstrates the impunity prosecutors enjoy. Propublica reports today that

"While state attorney general in 1992, Burris aggressively sought the death penalty for Rolando Cruz, who twice was convicted of raping and murdering a 10-year-old girl in the Chicago suburb of Naperville. The crime took place in 1983. But by 1992, another man had confessed to the crime, and Burris’ own deputy attorney general was pleading with Burris to drop the case, then on appeal before the Illinois Supreme Court. Burris refused. He was running for governor."

Until there is accountability for prosecutorial misconduct, how can we expect fairness in our criminal justice system?

NY Times Endorses Webb's Call for Reform

The New York Times begins the new year by calling on all members of congress to show the same courage Senator Webb has shown and to "rally to the cause" of criminal justice reform. The editorial points out that "Senator Webb — a former Marine and secretary of the Navy in the Reagan administration — is in many ways an unlikely person to champion criminal justice reform. But his background makes him an especially effective advocate for a cause that has often been associated with liberals and academics."

The editorial concludes saying:

"With Barack Obama in the White House, and strong Democratic majorities in Congress, the political climate should be more favorable than it has been in years. And the economic downturn should make both federal and state lawmakers receptive to the idea of reforming a prison system that is as wasteful as it is inhumane."

To learn more about what comprehensive criminal justice reform should look like, visit the Constitution Project's report "Smart on Crime: Recommendations for the Next Administration and Congress." Here you'll find a concise yet broad description of what we can do to improve the entire system, from investigation through release. It's a report written by respected scholars and reform advocates that's worth our attention--and the attention of our elected leaders.

What I would add to the welcome comments in the Times is that reform is not an issue of right vs. left, conservative vs. liberal or republican vs. democrat. It is first and foremost an issue of justice. As such, it transcends political boundaries. For example, Senators Brownback and Leahy--as different as night and day--joined forces to sponsor the Wrongful Convictions Tax Relief Act. There need be no division or restraint in the pursuit of justice.