Innocents and Prosecutors' Misconduct

Supreme Court hears Connick v Thompson today. Will unfettered patterns of abuse go unheeded?

John Holloway writes in Slate yesterday.

Grits has good references as well.

Convicting Innocents

Here is a link to Sean Penn's documentary Witch Hunt (2008). The description from Emanuel Levy:

"Witch Hunt" chronicles the unraveling of a small town's justice system. The main characters in this new non-fiction film are working class parents, moms and dads, who were all wrongly convicted of child molestation in the early 1980s in the town of Bakersfield, California. Each of these falsely convicted people was recklessly pursued by the same Kern County District Attorney who remains in office today. "Witch Hunt" is a true crime drama, where the real criminals were the authorities, themselves.

PLEASE watch the film and tell me the system is not corrupt.

There is dire need for judicial reform. Although this episode happened over 20 years ago the abusive practices continue in ever more sophisticated fashion.

Check Sosen's site on the sidebar of this blog and the many comments on topic during the previous 9 months at Emanuel Levy.

There's a book I read a few years ago I thought was called cynically titled Presumed Innocent, not to be confused with Turow's of the same title. The one I read is about the Bakersfield travesty. I am having a hard time tracking it down. If anybody sees this and can help please do so.

Sources and Resources

Talk about a great week, today I found a Voice of Witness series book called, Surviving Justice: America's Wrongly Convicted and Exonerated. This came through Atlantic Monthly link to New Yorker piece hot off the press, Trial By Fire: Did Texas Execute an Innocent Man? by David Grann.

A quote:

In the summer of 1660, an Englishman named William Harrison vanished on a walk, near the village of Charingworth, in Gloucestershire. His bloodstained hat was soon discovered on the side of a local road. Police interrogated Harrison’s servant, John Perry, and eventually Perry gave a statement that his mother and his brother had killed Harrison for money. Perry, his mother, and his brother were hanged.

Two years later, Harrison reappeared. He insisted, fancifully, that he had been abducted by a band of criminals and sold into slavery. Whatever happened, one thing was indisputable: he had not been murdered by the Perrys.

Apparently, there is a Center on Wrongful Convictions at the Northwestern U. Law School mentioned by Grann.

Here are the final words of Josh Willingham, whose homicide may well become the first acknowledged by any state to have been executed in error:

“The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do. From God’s dust I came and to dust I will return, so the Earth shall become my throne.”

Texas Justice Re-redux

One more instance of a Texas exoneration, and how bad laws make everybody less safe, and life more miserable for the accused and wrongly convicted by making it easier to be wrongly convicted, at the link. Having identified the problem, let's put a stop to it. Thanks, Grits.

Convicting Innocents: Numbers

You have got to admit that the Death Penalty, questions of life and death and fairness bring out the extremes in a man. The passion never fails to surprise me, with terms: bloodlust, police state, medieval, and limited government bandied about dripping with sarcasm.

We've all been wanting to know more about exonerations, which is another way of saying wrongful conviction. Here are some numbers, and where they come from: (from comments at Doug's site, link here).

DPIC, which you suggested, has info here: http://www.deathpenaltyinfo.org/article.php?did=412&scid=6#inn-yr-rc

In the last 5 full years (2003-2007), twenty-four (24!!!!) people have been exonerated. Three have also been exonerated so far in 2008.

The DPIC also states that, since 1973, 129 people have been released from death row with evidence of innocence.

I'm not surprised that your (a blogger named "federalist") bloodlust is based on inaccurate information. Of course, I'm sure you'll claim that you referred to 4 "DNA exonerations" whereas the DPIC stats are for "exonerations," as though there is some great difference. Let me preemptively note that the DPIC has an additional category titled "Released From Death Row (Probable Innocence)" which does not appear to be included among the numbers I gave. So whether from DNA evidence or something else, the 24 listed exonerees had more than "probable innocence."

A follow up comment shining more light on the subject:

Here are the standards for making it on DPIC's list of "exonerations," the list that shows 24 people in the last 5 full years, as I mentioned above.

For Inclusion on DPIC's Innocence List:
Defendants must have been convicted, sentenced to death and subsequently either-
a) their conviction was overturned AND
i) they were acquitted at re-trial or
ii) all charges were dropped
b) they were given an absolute pardon by the governor based on new evidence of innocence.
http://www.deathpenaltyinfo.org/article.php?scid=6&did=109

I can only guess that you will pound the table about (a)(ii), claiming such cases aren't "real" exonerations or something. But I would suggest prosecutors don't dismiss charges lightly and I cannot fathom any reasonable explanation not to include such people as exonerees.

I mean, I can predict a rant against, say, the exclusionary rule, arguing that *maybe* one of these cases involved dropped charges after a state post-conviction court found key evidence should have been suppressed [do recall that federal courts cannot grant a habeas petition on fourth amendment grounds], but such an argument only reveals a desire for a police state where the authorities should be able to ransack our homes. Such constraints on our liberty would merely be the price we pay for making sure that the police catch all wrong-doers and are not deterred from finding them using any means. We must protect the children, after all.

And,

RE: DNA - I think it behooves us to remember the Dallas prosecutor's office of 1970s and early 80s. (AKA "The reason why so much case law ends in Dretke") We know how bad they were in part because they were the only (or one of the only? I'm relying on newspapers here) offices to keep evidence from which DNA could be collected.

Dallas News carries an ap report on that round table debate on wrongful convictions in Texas.
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/050908dntexdna.e0f8d470.html

Wrongful Convictions: Sixty Minutes

Here is something to catch up on, if you missed it (I was at my daughter's swim club banquet--could not miss the good prime and mousse): The Sixty Minutes special on Texas's exonerations investigations.

Wrongly Convicted Struggle: Solution -- Revive Section 1983

Here is one from WP, Exonerated Struggle.

And from Reason, Suing the DA, Should prosecutors be immune from civil lawsuits?

(Radley Balko | April 24, 2008)

Last week, the U.S. Supreme Court agreed to hear the case of Thomas Goldstein, an ex-marine who was convicted of murdering his neighbor.

Goldstein served 24 years before his conviction was thrown out when the main witness against him was shown to have lied. That witness was a lifelong criminal who was given a deal on his own charges in exchange for testimony that Goldstein confessed to him in a jail cell. Goldstein alleges that the district attorney's office that prosecuted the case routinely used the testimony of so-called "jailhouse snitches" prosecutors knew or should have known weren't reliable.

Goldstein's case is unusual because he's not suing the prosecutor who convicted him, but John Van de Camp, the district attorney who supervised that prosecutor. The U.S. Court of Appeals for the Ninth Circuit has allowed Goldstein's case to go forward, causing the U.S. Supreme Court to agree to hear it.

Goldstein's lawsuit stems from federal law 42 U.S.C. 1983, which states that "…[e]very person" who acts under color of state law to deprive another of a constitutional rights shall be answerable to that person in a suit for damages," and provides a means for those wronged by government officials to file suit in federal court.

***

We tend to measure a prosecutor's performance based on how many people he's able to throw in jail, not necessarily by how well he metes out justice.

Rarely, for example, does a prosecutor get public recognition for the cases he doesn't take. So we have people in a position where they have the enormous power to take away someone's freedom, incentives nudging them to err on the side of prosecuting aggressively, and absolute immunity from lawsuits should they overstep their bounds.

It's a recipe for abuse.

***

The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions.

I recently reported a case in reason magazine quite similar to the Goldstein case. In 2006, Church Point, Louisiana resident Ann Colomb, 57, and her three sons were wrongly convicted in federal court of running a massive drug operation out of their home, thanks largely to the testimony of several jailhouse informants.

Despite the fact that the family's home was modest, and that the sons held down several hard labor jobs and went to school during the years of the alleged conspiracy, the government witnesses — who were offered time off from their own sentences in exchange for their testimony — claimed to have cumulatively sold the family some $500,000 worth of crack each month.

The family was released from prison when it was revealed that the jailhouse witnesses in the case had participated in an information sharing network within the federal prison system. Inmates were sharing photos, case summaries, and even grand jury testimony about pending cases, memorizing the information, then offering to testify in exchange for breaks on their own prison terms.

And on the recent Death Penalty case, via Doug (I could not have said it better):

Edward Lazarus has this new piece at FindLaw, titled "Five Decades of Fighting Over the Constitutionality of the Death Penalty: What Can We Learn from This Lengthy War?". Here is how it starts:

These days, when one speaks of a "war without end," the reference is usually to Iraq. But in the legal world, the phrase also provides an apt description of the five-decade-long fight over the constitutionality of the death penalty.

Last week's decision in Baze v. Rees, in which the Court rejected a challenge to Kentucky's three-drug protocol for carrying out lethal injections, is just the latest painful yet inconclusive battle. Like the Court's many dozens of death penalty decisions, issued over the last 45 years, the decision in Baze ensures only that the larger war will continue and that the Court's own internal culture will continue to be one of its casualties.

Texas Wrongful Convictions

One, "Wretched's" take on Dallas and Texas wrongful convictions:

At least James Curtis Giles' name is going to be cleared. Dallas County's "good" name? Not so much. For those of you counting, that's thirteen exonerations in the last few years. More than anywhere else in the country. That's partially because the concept of justice has been a tad loosely applied in there here parts. It's also because Dallas, unlike many other jurisdictions, actually holds on to it's forensic evidence.