Jeffrey Deskovic, executive director of The Jeffrey Deskovic Foundation for Justice, has specific proposals to reform New York’s criminal justice system, he addresses Misconduct, Discovery and other specific issues. Read the full article here.
Prosecutorial Misconduct and Negligence : Tactics for the Trenches is a presentation given by Don Rehkopf on April 21, 2017 to give defense lawyers the law and the tools to increase the odds of prevailing against Prosecutorial Error.
It covers four areas:
1. A linguistic suggestion that is perhaps less psychologically antagonistic than the phrase “prosecutorial misconduct;”
2. A synopsis of the various sources of discovery that must be asserted pretrial in an effort to prevent, but if not, preserve, these discreet issues;
3. A discussion of how to determine just what constitutes prosecutorial error; and
4. Suggestions on how to properly preserve issues of prosecutorial misconduct or error, pretrial and during trial.
“Prosecutors are far less likely to try and take advantage of a defense attorney who is ready to pounce on misconduct by objections and calls for sanctions.”
A 2013 study of false convictions says that Justice Scalia’s estimate was “silly”, conservatively, 4.1% of people sent to death row are innocent, and the majority of innocent but convicted capital defendants are neither executed nor exonerated.
The report concludes:
“We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”
“We do know that the rate of error among death sentences is far greater than Justice Scalia’s reassuring 0.027% (6). That much is apparent directly from the number of death row exonerations that have already occurred. Our research adds the disturbing news that most innocent defendants who have been sentenced to death have not been exonerated, and many—including the great majority of those who have been resentenced to life in prison—probably never will be.”
“This is only part of a disturbing picture. Fewer than half of all defendants who are convicted of capital murder are ever sentenced to death in the first place (e.g., 49.1% in Missouri as in ref. 24, 29% in Philadelphia as in ref. 25, and 31% in New Jersey as in ref. 26). Sentencing juries, like other participants in the process, worry about the execution of innocent defendants. Interviews with jurors who participated in capital sentencing proceedings indicate that lingering doubts about the defendant’s guilt is the strongest available predictor of a sentence of life imprisonment rather than death (27). It follows that the rate of innocence must be higher for convicted capital defendants who are not sentenced to death than for those who are. The net result is that the great majority of innocent defendants who are convicted of capital murder in the United States are neither executed nor exonerated. They are sentenced, or resentenced to prison for life, and then forgotten.”
Read the Study in full here : Rate of false conviction of criminal defendants who are sentenced to death – Proceedings of the National Academy of Sciences of the United States of America.
Featured in the smash hit Netflix documentary series Making a Murderer, Brendan Dassey’s post-conviction attorneys, Northwestern Law Professors Steven Drizin and Laura Nirider, discuss powerful psychological techniques used in police interrogations that can lead juveniles to falsely confess. Learn more about Brendan’s case, complete with additional footage from his interrogation that wasn’t seen on Making a Murderer.
According to Judge Alex Kozinski, “Federal judges have been pretty much shut out … from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred. We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”
See Gutting Habeas Corpus : The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain The Intercept, May 4, 2016, for how this came about.
Please sign this petition calling for the President of the United States and Congress to act to correct this situation, and to allow Federal judges to act when they believe a miscarriage of justice has occurred.
Retired FBI detective Steve Moore has written an excellent series of blogs on the “Making a Murderer” film, concerning the convictions of Steven Avery and Brendan Dassey. I strongly recommend reading his blogs, in addition to or instead of watching the film, as they are a mine of interesting information and observation. An index:
- Episode 1: “18 years lost”
- Episode 2: “Turning the table”Part 1 of 2
- Episode 2: Part 2 of 2
- Episode 3: “Plight of the accused” Part 1 of 2
- Why are you writing these articles on the Avery Case, Steve?
- Episode 3: Part 2 of 2
- Episode 4, “Indefensible” Part 1 of 3
- Episode 4, Part 2 of 3
- Episode 4, Part 3 of 3
- Episode 5, “The last person to see Teresa alive” Part 1 of 3
- Episode 5, Part 2 of 3
- Episode 5, Part 3 of 3
- Episode 6, “Testing the evidence” Part 1 of 3
- Episode 6, Part 2 of 3
- Episode 6, Part 3 of 3
- Episode 7, “Framing defense” Part 1 of 2
- Episode 7, Part 2 of 2
- Episode 8, “The Great Burden”
- Episode 9
- Episode 10
We discussed how the Wrongly Convicted Group came about, the wrongful convictions caused by serial killer Edward Wayne Edwards and several individual cases such as Jodi Arias, David Camm, Debra Milke, Kirstin Blaise Lobato, Darlie Routier, Hannah Overton, Scott Peterson, Christopher Coleman, Stobert Holt, Sam Sheppard, Richard Glossip, Steven Avery, Brendan Dassey and Diane Downs .
What is to be done?
By: Keith Findlay
Keith Findley is an assistant professor of law at the University of Wisconsin Law School, where he is co-director of the Wisconsin Innocence Project. He represented Steven Avery, subject of the “Making a Murderer” documentary, in the 2005 proceedings that produced DNA evidence to prove Avery’s innocence and exonerate him of a 1985 sexual assault conviction.
If, as the Supreme Court has consistently declared, the presumption of innocence is among the most fundamental principles in our criminal justice system, it is also among the most fragile.
The presumption is under constant assault from jurors’ natural assumption that if someone is arrested and charged with a crime, he or she must have done something wrong. It is also vulnerable to the media frenzy around high-profile cases, the fear-driven politics of crime, the highly punitive nature of our culture and the innate cognitive processes that produce tunnel…
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Judge Alex Kozinski writes about the need for reforms in America’s criminal justice system. I won’t try to summarise the long review here, instead I suggest that everyone download and read the article in it’s entirety. I strongly agree with most everything he says.
Commentary by Matt Kaiser Why Judges and Prosecutors Don’t Care If They’re Right July 9, 2015
“After reading the first 11 pages of Kozinski’s piece, one gets the strong feeling that our criminal justice system isn’t that much better than trial by ordeal. Instead of drowning people, making them drink poison, or setting them on fire, we subject them to other rituals that are not much more tethered to actual guilt or innocence.”
Serialisation at Washington Post by Eugene Volokh.
Another summary ( reason.com, via the Innocence Project, July 24 ).
Summary by Phil Locke at the Wrongful Convictions Blog September 2, 2015.
‘Troublemaker’ Kozinski Unafraid to Advocate for Change December 2015
Excellent, brilliant and well overdue.
“Ours is a world in which justice is accidental, and innocence no protection.” Euripedes, 400 BC.
I come from a legal family, so even though I did not go into law, I’ve had a closeup view of the justice system my entire life, which is, I think, one of the reasons I decided to devote my post-corporate life to innocence work. I saw too many things happening that were not congruent with my view of what a fair and just system should, and must, be. For the past seven years, I’ve been deeply involved in innocence work, and have become knowledgable about the details of many, many cases (100’s) of wrongful conviction and wrongful imprisonment. Consequently, I’ve seen many ways in which actually innocent people become tragic victims of what we call “justice.” There are just so many ways the justice system can get it wrong. This…
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I propose that an Act be passed in every State that lawyers who act pro bono be properly compensated if their client is exonerated of a serious crime.
by Don Rehkopf. First published 31 July, 2014
“The Elephant in the Room” Scenario. Much space has been spent on this thread (and related ones) about the injustices caused by prosecutorial misconduct – something that I have been fighting for years. But, there is also, albeit largely unmentioned or discussed, the flip-side of the “prosecutorial misconduct” coin, i.e., the ineffective assistance of counsel issue. Many (but certainly not a majority) of wrongful convictions have their origins in – for lack of a better term – bad lawyering.
“Bad lawyering” takes many forms – failing to investigate properly; failing to factually, legally and scientifically challenge the prosecution’s evidence; and what I call “The Elephant in the Room” scenario, i.e., the simple failure to sit down with the known evidence as well as the LACK of evidence and to just think about it. Yes, the old “thinking cap” approach or in more modern linguistics, cerebration.
This lack of cerebration may have multiple causes, e.g., lack of time to do so (which may or may not be attributable to the defense); the failure to realize that intense cerebration is necessary to “think through” certain issues, especially where there are complex factual scenarios and permutations; or quite frankly, the lawyer simply is not smart enough to cerebrate properly in a given case.
In all honesty – having observed and studied this issue for 25+ years of my career – much of the blame falls upon the American Law School model, i.e., use of the “Socratic Method” of teaching.http://www.socraticmethod.net/ One can debate ad nauseam whether or not in the law school context that is effective, but assuming for purposes of argument it is, it is missing critical components necessary for being a TRIAL lawyer. Specifically knowing the differences between deductive and inductive reasoning and how to use them in cerebrating about a case is not something most lawyers are ever taught, especially in law school. Those who have been educationally exposed to the “hard sciences” and the scientific method [http://www.bio.miami.edu/dana/dox/scientific_method.html ] will generally be far better in their approach to defending someone than those who haven’t, simply because a cerebral approach to problem solving must be a multi-faceted endeavor. This is especially true in defending cases where forensic science disciplines are at the heart of proving or establishing the evidence.
But, what is also missing from the quiver of many defense lawyers is skill in the art of critical thinking: http://www.criticalthinking.org/pages/critical-thinking-where-to-begin/796 And as the stakes go up, i.e., the charges become more serious in criminal cases, the need for critical thinking by the defense must exponentially expand as well.
Why am I writing this little essay you rightfully ask? There are two reasons – one general, one specific. In general, I’m trying to get people to think about things before they post here and on related threads. To think about the evidence OR LACK OF SPECIFIC EVIDENCE in a case as opposed to emotions, or anecdotes, or even worse, media “commentary” — none of which is particularly helpful in addressing the topic of wrongful convictions.
The other, more specific reason, is a criticism about my “attack” on the performance of defense counsel in an on-going case on these threads – an attack that some, if not many feel unjustified. I accept the criticism as an invitation to review, re-analyze and re-think my position – but for the reasons that I posit below, retain my original opinion that the defense was weak and by-and-large ineffective because of the aforementioned lack of critical cerebration, which in the end, prejudiced the defendant.
September will be the 40th anniversary of my first jury trial as a defense lawyer, so I’ve been banged around and about in many courtrooms. I’ve also done two stints as a prosecutor, so I’ve been on that side of the aisle as well. I have a background in physics and to a lesser degree, regular chemistry (as opposed to organic), and thus familiar with the scientific method.
Before calculators and personal computers, I carried a “slide rule” for those of you old enough to remember what they are. But, I am not a scientist – I am a criminal defense lawyer who can understand and use science, especially forensic science to my clients’ advantage or to expose “bad” or “junk” science used by the prosecution.
Now, let me get to my point. There is a recognized approach to defending a case generally known as the “reasonable doubt” approach. That consists of attempting to discredit the prosecution’s case via cross-examination and tying up the “loose ends” in summation. But, of all possible defenses, most experienced cerebral-thinking and experienced lawyers and social scientists who study jury dynamics, will tell you, that, by itself, is a very WEAK defense. Sometimes it’s all you’ve got and thus, necessary. But, in this day and age of advanced forensic technology, it rarely is – rather, it is the product of sloppy (or non-existent) thinking.
EXAMPLE: The prosecution calls a scientist who by education, training and experience is a qualified forensic scientist. But, that does not mean that her testimony is either scientific or valid. Cross-examination should be the beginning of exposing her “fuzzy” (but pro-prosecution biased) testimony. But, that needs to be preceded by investigation, research and much cerebration to be effective. Merely bringing out that she didn’t do this, didn’t do that, or didn’t follow-up on why – as most experienced practitioners will tell you – does little to the average juror. The reason being is that if that is the defense’s tactic, the defense MUST be prepared to demonstrate that had the prosecution’s scientist done X, done Y, applied the “scientific method” etc., would have (versus MIGHT have) produced a differing verdict. Jury consultants and psychologists will tell you what experienced defense counsel already know – raising those issues on cross-examination, i.e., she didn’t do this, she didn’t do that approach, almost always backfires because the average juror thinks: “OK dumb-ass, if it was so important for this case, why didn’t you – after finding out about the prosecution’s theory – go out and do it for your client?” By-and-large, jurors ignore the “presumption of innocence.”
“Why didn’t you, Mr. Defense Counsel, insist that they do this? And if they refused, and if it’s so damn important to your case, why didn’t you do it yourself, then we’ve got something to ‘hang our hat’ on?”
Rather than that approach accompanied by trashing her during closing arguments, would not a better approach to “impeaching” her be thus:
Q: Ms. X, you hold yourself out to being a scientist, correct?
Q: As a scientist, you are of course familiar with the ‘scientific method’ correct?
Q: The ‘scientific method’ requires you to rule out alternative hypotheses before you reach a conclusion, does it not?
A: Yes, it does.
Q: And to “rule out” something, means applying science to it just like you applied it to the samples given to you by the prosecution, correct?
Q: But, in this case, you did not rule out soil samples taken from other areas than where the DA wanted, potentially relevant to your conclusions, did you?
Q: And without testing those soil samples from those other areas, you have no way of scientifically knowing whether or not those untested areas, COULD be relevant to your conclusions here, do you?
A: Not really.
Q: In other words, you did not apply the scientific method in this case, did you?
A: Not exactly.
Q: In other words, your ‘scientific conclusions’ you gave to the jury a few minutes ago, was based upon pure speculation that those other areas contained no relevant evidence, correct?
A: If you say so.
Thus, from the field of jury dynamics, the first example [i.e., what was actually done at the trial] was merely the defense blowing smoke, meaning simply getting the scientific witness to admit not having done things and then later arguing that such failure created reasonable doubt, almost never works – something that experienced defense counsel know and appreciate. But, in the hypothetical second example, you “turn” the witness; you take her scientific credentials and experience to show that she didn’t use “good” or accepted scientific procedure; she did what any shill would do, what the prosecutor asked her to do; demonstrated beyond all doubt that the proper application of science BEFORE reaching any conclusions was to rule out alternative hypotheses or theories, and then argue that she has proven herself both scientifically unreliable by her own admissions and a biased, prosecution “smoke-blower.”
Alternatively, this particular witness should never have been allowed to testify as an “expert” witness. Some 20 years ago, the US Supreme Court decided a case by the name of Daubert.
That case stands for the proposition that trial judges should exclude “junk science” from trials, and goes on to show that to be admissible, the testimony must be based upon sound scientific principles, been subject to peer review and done in a manner that others in the field can duplicate. To do this, the defense must object in advance of the trial, the judge is supposed to hold a Daubert hearing and make a ruling and if the defense loses, they need to again object to the testimony at trial to ensure that it framed / preserved for appellate review.
In the case at issue, that did not happen as far as I could ascertain – certainly there was no objections at trial, and the questioning by the defense was imo, demonstrative that no Daubert analysis / objections had been made. Why is this important? Because, in the case at issue, the ultimate testimony before the jury was misleading speculation, speculation that the defendant was “most likely” at the scene of the crime, when in fact, the evidence did not and could not show that. Furthermore, the so-called “scientific analysis” was not subjected to peer-review [i.e., review by other qualified scientists in the relevant field] until much later and SURPRISE, resulted in a significant change in the ultimate conclusion – one quite different than the impression given to the jury. But, there was no objection . . . .
WHY am I arguing about this? Social Science research has validated what good defense lawyers have long-known: “Providing a (single) very weak defense can raise confidence in the prosecution’s case because jurors might think, ‘‘if this is the best the defense can do, he must be guilty’’ But, add to this a SODDI [or TODDI] defense, i.e., “Some [This] Other Dude Did It” and point to the suspect, and the odds of a “not guilty” verdict increase dramatically. The BEST example of all of this in many, many years was Rick Kammen and Stacy Uliana’s brilliant defense of David Camm, e.g., exposing the charlatan prosecution “experts,” and establishing the SODDI defense that Bonehead was the perpetrator. Or, “the Plan B defense tactic of introducing an alternative suspect, even without changing evidence against the defendant, can make convictions held ‘‘to a moral certitude’’ crumble.”