New DOJ/Commerce Department Task Force on Forensic Reforms Launched

The Department of Justice and the Department of Commerce have announced a blue ribbon task force on forensic reform. Members of the committee include not only prosecutors and law enforcement, but also people with strong ties to Innocence Projects and forensic scientists who have been critical of the methodology used by some crime labs. This court be big! The full story is the DOJ’s press release. Read More...

Dissenting Judge Kozinski Recognizes Epidemic of Brady Suppression

Ninth Circuit Judge Kozinski may be a conservative, but he has long ago earned my respect for his honesty and ability to not simply tow the party line. His dissent in United States v Hicks, Ninth Circuit No. 10-36063 is no exception. It is rare that a dissent may be a call to action, but this case may be that exception.
Brady v Maryland prosecutors to disclose all evidence which is exculpatory in nature or which mitigates punishment. Unfortunately, in our adversarial system prosecutors are often tempted to bury this evidence. The problem comes with the fact that the person exercising this judgment has a conflicting obligation Moschus is to try and convict a defendant. What prosecutor is theoretically the Minister of Justice career advancement is normally based on convictions. Prosecutor to conceal evidence rarely phrase discipline for doing so and I virtually never prosecuted.
Kenneth Olsen was charged with developing chemical weapons of mass distraction. There was evidence presented at trial that he was attempting to develop the chemical ricin. The quantities impurities of this drug however were so low that the government was going to have a difficult time proving that the defendant had any intent to injure other people. To overcome this, the assistant United States attorney call Arnold Meinkhoff as their expert witness. Prosecutor concealed an internal investigation which showed huge problems with this expert witnesses integrity or level of care. Fourteen of his one hundred investigations which were audited showed serious problems.
This was never turned over to the defense counsel. The majority of the Ninth Circuit Court of Appeals upheld this nondisclosure. A majority of United States Court of Appeals for the Ninth Circuit then denied en band rehearing.Judge Kozinski not only dissented from the results in that case, but noted that Brady violations had reached epidemic proportions.
Judge Kozinski further wrote:
“The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

The problem is systemic. Prosecutors cannot be trusted to determine what evidence must be turned over to undercut their cases. Courts need to move this determination from the prosecutor to an independent master. Similarly forensics needs to be moved from an adversarial branch government to a branch under the court which is not incentivized in anyway to call a matter in one want manor or the other. These experts also need to be shielded from the other evidence and opinions in the case so that all they are determining is based on the evidence they are charge with investigating.

Wilful Blindness" Why Some Prosecutors Don't Want to Know About Police Perjury

The East Bay Express has a blog piece about the problem with police perjury and how many prosecutor’s do not think it is their obligation to check with police departments to see what history these officers have. Police who get caught lying are not always fired and when they are fired, they often stay in law enforcement -- just switching departments.


Some police departments maintain “Brady lists” of officers with troubled pasts. They try to keep these officers from being affiants in search warrants where possible and regard it as their duty to turn evidence of past scandals over to the defense. At least in California, however, there is no consistent policy about what is in a Brady policy or when a prosecutor has to go back to the police department looking for evidence of past lying on the part of a given officer.


The now disbanded California Commission on the Fair Administration of Justice had recommended in their 2008 report that prosecutor’s offices maintain strict and consistent Brady lists. Unfortunately, police departments have pushed back because they think that these lists will make these tainted cops unusable.


One of my new favorite blogs (the Open File) has a nice commentary on this article. The Open File about prosecutor misconduct and urging public accountability. Not surprisingly on the same page are articles about convictions being overturned because the police have failed to turn over more than 11,000 pages of exculpatory evidence in one case, of a federal judge in New Orleans overturning another conviction because their US Attorney’s Office elicited perjured testimony, and a 9th Circuit case overturning a money laundering case because the declassified summaries turned over to defense counsel were misleading and withheld favorable evidence.

As I was about hit the “publish button” on my software, I saw today’s story about Debra Milke, the German mother convicted of aiding and abetting the murder of her son and received the death penalty. The Maricopa County Arizona prosecutor had concealed the fact that the police officer who supposedly took her undocument “confession” had a long history of perjury. Not surprisingly, the prosecutor concealed evidence that the police had a history of perjury. Despite the fact that there was four incidents of perjury by the officer he was kept on the force. Judge Kozinski’s opinion can be found here. Chief Judge Kozinski is the chief judge of the Ninth Circuit a independent minded conservative. Despite the Arizona’s Attorney General’s vow to appeal this ruling, I don’t think he has much chance. While the US Supreme Court has not been kind to the Ninth Circuit, this error strongly suggests actual innocence and seems to be within the four corners of Brady.

Sixty Minutes Profiles Texas Exoneree Michael Martin

Tonight’s 60 Minutes had an interest story (possibly a rerun) on Texas Exoneree Michael Martin. Mr. Martin was convicted of murdering his wife because the prosecution had hid various reports showing that the police had contemporaneous reports which showed that the Defendant’s three year old son had exculpated the Defendant. The police buried it. The prosecution fought the Defendant’s request for a DNA test for five years. The test showed that the someone else committed the crime.

Reid Method of Interrogation

The Reid method of interrogation remains popular despite the fact that it is roundly criticized. In fact, an early variation of the Reid method was critically referred to back in Miranda v Arizona. Innocence Projects around the country have further demonstrated its flaws. Police get confessions whether truthful or false. Recently, Psychology Today recognized that there is no science underlying the technique. They further recognized that it contains elements of “brainwashing” and “entrapment.” For an interesting Canadian decision criticizing the Reid method, click here.

New York Times Blasts New York for Refusing to Admit Fault in Jogger Exoneration Case

Twenty-four years ago, five black teenagers from New York were wrongfully convicted in a brutal sexual assault of a Central Park joggers. In what the New York Times called “high grade Chutzpah,” the City stated that the issue of innocence was irrelevant. They stated that the officers and prosecutors acted in good faith when they brought the charges. The City has has called the various news stories and documentaries one sided but conveniently ignored the fact that the City has blocked all public employees from being interviewed on the story.

The litigation however speaks about what is wrong with the system. Innocence should be enough. If we convict an innocent defendant, then we should be prepared to compensate him for the portion of their life that was destroyed. It is incredibly difficult to reestablish your life once you have been incarcerated (wrongfully or correctly). Most people lose all their assets while incarcerated. What the state doesn’t take directly is lost because the person’s incarceration stops them from paying mortgages, car payments, etc. All personal possessions (except what a kind relative may hold as a favor) get tossed out on the street. When society makes a mistake and convicts an innocent person, the issue should not be about whether the officer or the prosecutor set out to convict an innocent man, but whether an innocent man was convicted. States should create a compensation fund which is the equivalent of a crime victim’s fund designed to compensate these individuals.

Important Law Review: Why Courts Have to Take a New Look at Shaken Baby Cases

An important law review was just published on why courts need to be taking a new look at “shaken baby syndrome” based convictions based on the new evidence. The author of the article is Professor Keith Findley was is the director of the Wisconsin Innocence Project. This article is one of many recent developments which suggest that courts may finally have to reassess their position on this highly controversial diagnosis. Read More...

Troy Davis Executed

Last night the State of Georgia executed Troy Davis. Mr. Davis was convicted of killing a police officer. Subsequently, most of the witnesses either recanted their testimony or made statements which seriously called into question their prior testimony. They painted a picture of a police department out to close the case at all cost. The motivation that drives the police departments to catch a cop killer is also the motivation that causes a case to go awry. The Davis case paused many, but apparently not enough. Despite a number of cases which prove the fallacy of the legal theory, the law still treats recanting testimony is unreliable. You can find eloquent prose speaking about how this is the most unreliable testimony that exists. The problem is that despite the eloquence, a review of a number of the cases involving exonerations have shown that there was recanting testimony.

The law is prepared to believe these witnesses when they convict the Defendant, but once the same witness recants they suddenly lose all credibility. Individuals who recant have a lot to lose. They face perjury charges, pressure from law enforcement, and having their name dragged through the dirt. No one who has ever been in the witness box regards hours of vigorous cross-examination as a painless experience. Many people who prefer to spend that time under the dentist’s drill.

The Davis case could have also been used as a vehicle for the United States Supreme Court to finally answer the question about whether convicting an actually innocent defendant is a self-standing constitution question. The US Supreme Court’s 2009 original habeas corpus proceedings in I
n re Davis almost reached that question. Right now, actual innocence is a wild card in federal court that can substitute in for demonstrating good cause for failing to raise an otherwise valid constitutional issue, but it can never be a self-standing “winning hand.” You need actual innocence plus an error. In theory if an actually innocent defendant is convicted at a textbook perfect trial, there is no error.

I don’t have a clue whether Mr. Davis was innocent or guilty, but I think his case should serve as a vehicle for scholars to reexamine the recanting witness doctrine and for Courts to finally recognize that convicting an actually innocent defendant is a constitutional violation.

West Memphis Three to Be Freed, But State May Avoid Liability.

CNN is reporting that a deal has been struck to release the “West Memphis Three.” In 1993, these three men (Damien Echols, Jessie Misskelley, Jr., and Jason Baldwin) were convicted of murdering three boys from West Mephis Arkansas. The three will be allowed to maintain their innocence, but are being required to concede that they were prosecuted in good faith by the State. While I am not an Arkansas attorney, this moves seems to be designed to cut off monetary liability for the state.

There is something is something wrong with a system which refuses to compensate individuals for wrongful incarceration, regardless of fault. They have lost everything and will have to restart their lives penniless. Innocence should be enough. Our system should not require a dual showing of actual innocence and affirmative misconduct on the part of an individual player.

Mich. Sup. Ct. Refuses to Hear Lorinda Swain Appeal. Actual Innocence May be Irrelevant in Michigan.

On December 16, 2010, the Michigan Supreme Court refused to hear the Michigan Innocence Project’s appeal in the Lorinda Swain case. People v Swain, Supreme Court No. 141504. Justices Kelly, Cavanaugh, and Hathaway dissented. New evidence had convinced Calhoun Circuit Judge Conrad Sindt (a very conservative judge) to grant her a new trial based on ineffective assistance of counsel and newly discovered evidence. The Michigan Court of Appeals (Hoekstra, Saad, and Murray) reversed the conviction based on a procedural bar. Michigan law prohibits filing more than one 6.500 motion unless there is newly discovered evidence. The Court of Appeals ruled that such newly discovered evidence has to be evidence which the defense could not have located using due diligence. The Court implied that there was no actual innocence exception to this rule and that it is not a violation of the constitution to convict an actually innocent defendant. By a 4-3 vote, the Michigan Supreme Court refused to hear the appeal. Update: The Michigan Innocence Project has since moved for rehearing in the Supreme Court. Since Judge Davis voted with the majority, it is possible that they could pick up the vote of incoming Justice Mary Beth Kelly (not to be confused with co-Justice Marilyn Kelly).

Is Texas About to Execute Another Innocent Defendant?

Today’s New York Post contained a troubling story involving an a demonstrably false allegation of rape. Biurny Peguero Gonzalez repeatedly told police, prosecutors, the grand jury, and the petite jury that she had been raped by William McCaffrey. The jury believed Ms. Gonzalez and convicted the defendant. Mr.McCaffrey served more than four years in prison before exonerated by DNA test. At that point, Ms. Gonzalez coached on by her priest recanted her testimony and admitted she was never raped. What is sickening about the case is her underlying reason for the false allegation of sexual abuse. Ms. Gonzales was out with friends and temporarily left with the Mr. McCaffrey. Her friends were upset with her for leaving. In order to garner her sympathy, she invented the story that she was raped. At the original trial, she testified that she was 110% sure that the police have the right defendant and that he had raped her. Like many allegations of sexual abuse, the state had relied on her contemporaneous and distressed outburst over it to demonstrate that it was not a fabrication. While I recognize the danger of anecdotal evidence, the Gonzalez case demonstrates just how difficult it is to tell a genuine allegation of sexual abuse from a false one. It also paints a troubling picture about how easily some people won't make up such a damning lie. Click here to read the New York Post story.


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New York Perjury Conviction Demonstrates How Easily Some People Will Falsely Claim “Rape.”

Today’s New York Post contained a troubling story involving an a demonstrably false allegation of rape. Biurny Peguero Gonzalez repeatedly told police, prosecutors, the grand jury, and the petite jury that she had been raped by William McCaffrey. The jury believed Ms. Gonzalez and convicted the defendant. Mr.McCaffrey served more than four years in prison before exonerated by DNA test. At that point, Ms. Gonzalez coached on by her priest recanted her testimony and admitted she was never raped. What is sickening about the case is her underlying reason for the false allegation of sexual abuse. Ms. Gonzales was out with friends and temporarily left with the Mr. McCaffrey. Her friends were upset with her for leaving. In order to garner her sympathy, she invented the story that she was raped. At the original trial, she testified that she was 110% sure that the police have the right defendant and that he had raped her. Like many allegations of sexual abuse, the state had relied on her contemporaneous and distressed outburst over it to demonstrate that it was not a fabrication. While I recognize the danger of anecdotal evidence, the Gonzalez case demonstrates just how difficult it is to tell a genuine allegation of sexual abuse from a false one. It also paints a troubling picture about how easily some people won't make up such a damning lie. Click here to read the New York Post story.


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Innocence Project Wins Release of Man After 35 Years Wrongful Confinement

James Bain spent 35 years in jail after being found guilty of kidnapping and raping a nine-year-old boy in 1974. He was released from prison yesterday based on evidence conclusively showing his innocence. The Innocence Project of Florida helped co-ordinate Mr Bain's release. It says that he was imprisoned for far longer than any of the other 246 inmates exonerated by DNA evidence across the US. Based largely on the work of the Florida Innocence Project, a DNA test established his actual innocence to the offense. A second test requested by the prosecution confirmed the results of the first test.
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New Innocence Project Report Says Michigan and Other States Are Failing to Help Exonerated.

A report released on December 2, 2009, by the Innocence Project entitled “Making Up for Lost Time: What Wrongfully Convicted Endure and How to Provide Fair Compensation,” finds devastating gaps in the support and services that states provide to people exonerated after serving years in prison for crimes they didn’t commit. Only 60% of the people exonerated have received any compensation, and much of this compensation has been inadequate. Michigan doesn’t currently provide any compensation for exonerees. The Innocence Project has stated that they will make the passage of a compensation bill in Michigan one of their priorities. Read More...

Illinois Prosecutor's Office Continues Attack on Northwestern Innocence Project

This past Wednesday, the U.S. Supreme Court heard oral arguments in Wood v. Allen, trying to come up with a working definition of AEDPA deference in habeas corpus cases.Petitioner’s trial teams had three attorneys (one of which had less experience than the others). This lawyer handled the penalty phase, during which he failed to present mitigation evidence, obtained from a competency evaluation, of Wood’s significant mental impairments. It is unclear from the oral arguments what standard the Court will ultimately adopt. It appears that he entire Court was very concerned about articulating a standard that would not further complicate habeas proceedings.  What standard they will ultimately choose, however, was in no way clear.

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More Innocence Project Bashing

Last month, we reported that the prosecutors were going after the Northwestern Innocence Project at the Medill School of Journalism at Northwestern University. The prosecutors were claiming that students biased in favor of finding claims of innocence based on grade pressures. The students vigorously deny this. Based on their claims, the prosecution has sought broad based discovery into numerous aspects of the student’s lives. The prosecution have asked for Northwestern University to provide the students grades and emails. Northwestern University is fighting the request. A hearing is scheduled for Tuesday. This story was covered by CNN, the New York Times,and the Chicago Tribune

Prosecutors Go After Northwestern Innocence Project

Sunday’s New York Times has an interesting article about state prosecutors trying to turn the tables on the Medill Innocence Project at Northwestern University. The students of that project provided investigation that is being used in a motion for new trial in the Cook County Circuit Court pertaining to the thirty year murder conviction of Anthony McKinney. The prosecution were provided the affidavits, video tapes of the statements of the witnesses, and their written statements. The state, however, wanted more. They have subpoenaed all the students e-mails, notes, and internal memorandums.