Category Archives: Reform

The Human Toll of Antonin Scalia’s Time on the Court

Blacks, Latinos, and poor whites suffered because of his draconian approach to criminal punishment.

In the days since Antonin Scalia’s death, he has been duly recognized as one of the most impactful justices in the Supreme Court’s history. A critical part of his troubling legacy has long been staring us in the face, although it finally started receiving the public scrutiny it deserves in recent years. As draconian punishments became the norm over the last three decades, the Supreme Court largely rubber-stamped these practices. Justice Scalia played a key role in this process, as his hardline stances on criminal punishment significantly contributed to mass incarceration, numerous executions, and systemic racial discrimination. Scalia was an outspoken supporter of harsh punishments and wanted the court to take an even more hands-off attitude toward so-called “tough on crime” laws.

See here for full article at Slate.com

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Supreme Court Corruption

Radley Balko writes:

“The fact that Beach confessed to killing Nees at the same time he falsely confessed to killing three other women should have been a sign that perhaps his confession was due more to coercion from his interrogators. (This is not uncommon.) That didn’t seem to faze then-District Attorney Mark Racicot, who proceeded to trial and won his conviction. Racicot would, of course, go on to become an immensely popular Montana governor as well as chairman of the Republican National Committee, and was initially President George W. Bush’s choice to be U.S. attorney general before withdrawing from consideration.”

“A Montana district court judge threw out Beach’s conviction, ordered a new trial and released Beach on bond while awaiting that trial. Incredibly, 18 months later the Montana Supreme Court reversed that ruling, reinstated Beach’s conviction and ordered him taken into custody. Beach voluntarily turned himself in, and was taken back to prison. (Incidentally, journalist John Adams pointed out at the time that two of the four judges who reinstated the conviction were appointed to the bench by . . . Mark Racicot. One of them worked for Racicot when he was the state attorney general, and Racicot endorsed her when she ran for a position on the state’s supreme court.)”

Systematic corruption of State Supreme courts is I think not limited to Montana. Reform is needed.

The Path to Exoneration

This article is the first systematic empirical study of how the American criminal justice system discovers and responds to factual error based on actual innocence. The study analyzes a data set of 260 cases of wrongful conviction of the innocent and 200 near misses (i.e., dismissals and acquittals involving an innocent defendant) to better understand the sources of and bases for exoneration; who is responsible for, as well as who opposes, exoneration; the statistical correlates of exoneration; and the primary methods and mechanisms involved in the path to exoneration.

This study leads to several findings. First, wrongful convictions are difficult to reverse in the absence of dispositive evidence of innocence. The vast majority of exonerations relied on one or two bases, and even then most required DNA evidence. Second, the adversarial nature of the criminal justice system continues from the trial level to subsequent efforts to exonerate the innocent. Police and prosecutors maintain their roles, infrequently playing a central part in investigating or advocating for exoneration and serving as the largest combined source of opposition to exonerations. Finally, exonerations take a long time, even longer when based on DNA evidence, which appears to be the primary basis for clearing defendants.

After examining these findings, the authors advocate for the following changes in the United States criminal justice system: 1) police and prosecutors must take a more active role in the review and reversal of factually erroneous convictions; 2) additional juridical proceedings are needed for the wrongly convicted to prove their innocence even after conviction; 3) efforts must be made to prevent wrongful convictions at the front end because the resources for freeing the wrongly convicted are so limited and the path to exoneration following conviction is filled with formidable challenges.

Full report here Copy here

Misconduct – an uneven playing field?

The Oklahoma Supreme Court’s penalty for intentionally misleading the defense?

Both prosecutors were ordered to be “publicly censured.” A man’s life was on the line, and all the prosecution’s conduct resulted in was a public reprimand. Compare that to the case of an Oklahoma defense attorney accused of suborning perjury.

After a witness was found to by lying when she said that a drug defendant was with her in Mexico on the day of a 2007 drug deal, attorney Mark Clayborne was accused of knowing the witness was lying and knowing she had altered the date on a video to make it appear that she and the defendant were together in Mexico on the date of the alleged offense.

Clayborne contested the witness’s statement that he told her to lie, saying he did not knowingly permit perjury. However, he was convicted of one count of perjury by subornation and one count of false preparation of exhibits as evidence. He was disbarred and criminally sentenced to six years in prison.

Read more at Huffington Post

The need for reform

Social media is exposing cases of wrongful conviction in the United States and elsewhere where the vast majority of intelligent people who have carefully examined the evidence have concluded innocence, where a court originally concluded guilt beyond a reasonable doubt.

The case of Richard Glossip is an obvious example.

It’s clear that the problem is not with the general public but with the justice system, which has failed too often.

It’s about time politicians took some notice and initiated reform to:

(1) Reduce the rate of wrongful convictions.

(2) Identify unsafe convictions in a timely way, and release the wrongly convicted from prison.

The Cure for the Cynical Prosecutors’ Syndrome: Rethinking a Prosecutor’s Role in Post-Conviction Cases

Perhaps a name-change might help – “State Justice Attorneys” rather than “Prosecutors”. Language and words can influence beliefs. Original article here.

Wrongful Convictions Blog

“The Cure for the Cynical Prosecutors’ Syndrome: Rethinking a Prosecutor’s Role in Post-Conviction Cases” by Laurie L. Levenson  of the Loyola Law School in Los Angeles was recently published by the Berkeley Journal of Criminal Law. The abstract reads:

One of the biggest challenges facing the criminal justice system is dealing with the growing tide of post-conviction petitions claiming wrongful conviction. Each year, the number of exonerees grows. In 2014, an unprecedented 125 exonerations were recorded in the United States. In analyzing how post-conviction matters are handled, it becomes apparent that one of the key roadblocks to remedying these injustices is not, as some have suggested, the attitude of young prosecutors. Rather, senior prosecutors also suffer from a type of “Cynical Prosecutors’ Syndrome” that impairs their ability to play a constructive role in the exoneration process. This article discusses the role of prosecutors in the post-conviction process, analyzes current studies of prosecutorial attitudes…

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Update: White House Report on Forensics Science: “Eradicate” the Use of Bitemarks

Bitemark identification is unscientific – according to Jo Handelsman at the White House Office of Science and Technology Policy.

FORENSICS and LAW in FOCUS @ CSIDDS | News and Trends

Office of Science and Technology Policy

Update on the Update: More on this today (Wednesday July 22, 2015)  from Radley Balko at THE WATCH

On Tuesday, July 21, the White House OSTP issued an oral presentation by:

Jo Handelsman

Dr. Jo Handelsman is the Associate Director for Science at the White House Office of Science and Technology Policy, appointed by President Obama and confirmed by the Senate in June of 2014. Dr. Handelsman helps to advise President Obama on the implications of science for the Nation, ways in which science can inform U.S. policy, and on Federal efforts in support of scientific research.”

Her remarks were presented at the International Symposium on Forensic Science Error Management – Detection, Measurement and Mitigation, Arlington, VA, July 20-24, 2015, organized by the National Institute of Standards and Technology (NIST).

In its essence, she recommended the “eradication” of forensic science practices of the kind relied upon by bitemark identification — specifically using bitemark identification…

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Judge Kozinski on the need for reform

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.

Via The Wall Street Journal

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.

Summary at DPIC

Another summary ( reason.com, via the Innocence Project, July 24 ).

Judge Alex Kozinski and Barry Scheck Discuss Criminal Justice Reform at Cardozo Law School August 28, 2015

Summary by Phil Locke at the Wrongful Convictions Blog September 2, 2015.

‘Troublemaker’ Kozinski Unafraid to Advocate for Change December 2015

 

How Germany does prison, day two.

The Germans had trouble making sense of these questions. There were a lot of blank stares. In Germany, prosecutors and judges are not elected. As career civil servants, they are insulated from public opinion. Their work is more “technical,” said Gero Meinen, who directs the prison system in Berlin. The role is to protect the rational system of correction — which aims to restrict freedom the least amount necessary — from the retributive impulses that individual victims and society in general might feel.

Series index – The Marshall Project

Criminal Judicial Reform Petition

WE PETITION THE OBAMA ADMINISTRATION TO:

Criminal Judicial Reform: Create a Federal Commission to expedite and investigate wrongful conviction claim(s)

Wrongful convictions are NOT accidents: “2013 was a record-breaking year for exonerations in the United States,”Exonerations hit record high in 2014” Death Row exonerations, 153.

Since the DOJ and FBI refuse to investigate blatant constitutional violations by state prosecutors, we the people request there be a commission established to investigate and expedite legitimate claims of wrongful convictions.

Any knowingly false claim could be charged with perjury.

It is a known fact that American prisons currently house 10’s of 1,000’s of innocent people.

How can we as a Nation accuse other countries of human rights violations when we are the worse violator ourselves?

Are we truly asking too much, to have a commission to investigate egregious human rights violations we know have occurred?

Published Date: May 18, 2015

Our justice system is altogether broken.. because the people leading it are often sick, disturbed racists

Our justice system is altogether broken. This brokenness, though, must not be understood in some abstract way. It’s broken because the people leading it are often sick, disturbed racists who care very little for those on the receiving end of their sickness.

It’s not good enough to simply give wrongfully convicted men an insufficient check and an apology. We must repair the broken system so these instances go away for good.

http://www.dailykos.com/story/2015/03/24/1372956/-An-exoneration-happens-every-3-days-in-America-What-this-really-says-about-our-justice-system

See also Leaked Documents Reveal Dothan Police Department Planted Drugs on Young Black Men For Years, District Attorney Doug Valeska Complicit December 1, 2015

 

EVERYBODY Is Supposed to Tell the Truth in Court ……. Right??

Why not? Counter argument would be people might be reluctant to do the job, for fear of being accused. But same argument applies to witnesses – they could have fear of testifying. Why are lawyers entitled to special protection?

Wrongful Convictions Blog

The genesis of this post was the recent action by the US 9th Circuit in California, in which the court recommended perjury charges against a prosecutor who had lied to the court. Please see our previous post on this case here.

When I first saw this, my initial reaction was “holy smoke!” This is precedent shattering. But when you read the details, the potential perjury charges were recommended because the prosecutor in question had lied while testifying. This situation does not cover a prosecutor’s lying in court when not officially sworn in and under oath, which is basically all the time.

That’s when I had the epiphany. Here’s my idea. Let’s have all trial counsel, prosecutors and defense attorneys, sworn in at the beginning of each trial. It’s so SIMPLE, and would COST NOTHING. At most, this would take 60 seconds of the bailiff’s time at the beginning…

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Judge Alex Kozinski suggests lying prosecutor be prosecuted for perjury!

Could this finally be the push to stop prosecutorial misconduct?

“What will it take to produce honest and ethical conduct from our state and federal prosecutors? The Ninth Circuit has a suggestion. Perhaps a perjury prosecution will do it. In fact, that is exactly what should happen when prosecutors affirmatively lie.”

What is notable is the involvement of the California Attorney General:

“Making matters worse, the California Attorney General fought “tooth and nail” to keep the transcript of the relevant hearing from the California Court of Appeal.”

Read more at http://observer.com/2015/01/breaking-ninth-circuit-panel-suggests-perjury-prosecution-for-lying-prosecutors/#ixzz3PeS829B2

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