Laurie L. Levenson
Loyola Law School Los Angeles
August 20, 2015
Berkeley Journal of Criminal Law, Vol 20, Issue 2 (2015)
Loyola Law School, Los Angeles Legal Studies Research Paper No. 2015-27
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, and proposes reforms to ensure that meritorious post-conviction challenges are handled properly.
Full Article Here
“To the average person it’s inconceivable how a false confession can happen,” says Saul Kassin of the John Jay College of Criminal Justice in New York, who has been an expert witness in dozens of wrongful conviction cases. He says the suspect usually sees it as a short-term measure, thinking that when all the evidence is in, their innocence will become obvious. “They believe that in the end they won’t have to pay for the confession.”
Such a gamble is hard for juries to understand, he says, but the latest study might help. In this, 88 people did various computer tasks as part of a fake experiment, then either slept for 8 hours or had to stay awake all night. The next morning they were accused of losing all the study data by pressing the “Escape” key, something they had been repeatedly warned against.
Read more here
A scholarly 95 page study of Conviction Review Units by John Hollway, University of Pennsylvania Law School. The conclusion:
The variety of philosophies, policies, and practices within the 19 CRUs that participated in this project is no surprise. In fact, it may be surprising how many areas the DAs and leaders of CRUs did agree on.
And a complete evaluation of the utility of the different approaches employed by the CRUs is clearly premature. Still, the promise of Convictions Review Units is clear.
CRUs have the potential to showcase the criminal justice system working at its best. Done well, a CRU can be a force of good in the criminal justice community, a model that operates with objectivity and a focus on real-world truth to integrate adversarial viewpoints and analyze conflicting and complex information and address claims for individuals who may be suffering from a State-imposed injustice.
Whether the model extends and realizes its potential as a force for education and improvement of techniques to investigate and adjudicate criminal charges or not, good faith CRUs that operate with independence, flexibility, and transparency can build bridges across what is too often a bitter ideological divide between prosecutors and defense counsel, and between law enforcement and the communities they serve, and restore the community’s faith that each part of the system is operating to ensure that perpetrators of crime – and only perpetrators of crime – are held accountable for their acts in ways that preserve the constitutional freedoms of all.
Institutions with such great potential should be observed carefully, as their impact can be enormously positive.
Full Article Here: Conviction Review Units: A National Perspective.
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
According to a Reuters investigation
Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed, a Reuters analysis finds, suggesting that politics play a part in appeals. Now, the U.S. Supreme Court is about to decide whether to take up the issue in the case of a Ohio cop killer.
The American Bar Association has released a new publication, “The State of Criminal Justice 2015”.
The 76 page chapter devoted to capital punishment is available here ( via the Death Penalty Information Center ). It’s a treasure trove of information about problems in the implementation of the death penalty.
Arizona is mentioned several times.
- A paragraph on crooked “rock star” prosecutor Kenneth Peasley.
- The Arizona Republic’s four part series on prosecution misconduct is mentioned.
- The Debra Milke case is mentioned.
No mention of the cases of Jodi Arias or Shawna Forde, as this is a backwards-looking study, but there is an ongoing investigation into the conduct of the prosecutor Juan Martinez in the Jodi Arias trial.
A very interesting study of 56 wrongful capital prosecutions.
This perhaps sums it up:
The sheriff’s department’s blunder made the news, and the sheriff, who was facing a contentious reelection campaign, had to admit to reporters that he had no suspects.
Do politics and the administration of justice make a good mixture?
The Report | News Report
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