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Man released after 27 years in prison

Bikewer

Penultimate Amazing
Bikewer
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NPR has a news story up this morning:

http://www.npr.org/templates/story/story.php?storyId=90172724&ft=1&f=1012

About an all-too-familiar situation, a man who has served 27 years for a rape/murder found innocent by DNA evidence.

What's more to the point is that this case appears to be only the tip of the iceberg in the Dallas/Fort Worth area. Under a newly-elected prosecutor, staff have been reviewing past cases. of the 40 cases reviewed so far, 17 have been found innocent; the victims of not only poor trial and evidence procedures, but also outright prosecutorial malfeasance.

In the case listed above, exculpatory evidence (the fact that the victim was seen in the company of three other men the night of the murder, two of whom were known to the police as rapists) was concealed from the defense and the jury.
The accused actually had a good alibi, he was with another woman 30 miles away from the crime, at that woman's aunt's house. Both women made alibi statements...

The prosecutor, interviewed briefly, says there may be large numbers of such convictions in the greater Dallas area, to judge by the nearly 50% rate in the cases so far reviewed.

Part of this sort of thing is politically driven. Prosecutors are elected to office, and having a good record of large numbers of "successful" prosecutions looks good on one's record. Often, the Prosecuting Attorney's or District Attorney's office can be a stepping-stone to political success. Being "tough on crime" is always a good talking point in elections.

I'm well familiar with this; back in the 70s the local county prosecutor was notorious for only entertaining "cut and dried" cases that were sure convictions. Since warrants were never issued (usually "taken under advisement") for cases that were perhaps not-so-sure things, the conviction rate was high and indeed this particular fellow found himself drafted by the Administration at the time for a lucrative position.

One can only hope the situation in Dallas has improved over the years, and that standards for conviction have risen. Given the current climate vis-a-vis fear of crime, I fear that this may well be the tip of the iceberg.
 
Reasons for wrongful convictions:

1) Lack of skepticism of eyewitness identification. Studies have consistently shown that this sort of evidence is weak, in particular that the certainty a person exhibits has very little relation to the accuracy of the identification.

2) Poor investigation. This is a jurisdiction by jurisdiction issue. The FBI almost always does a very good job in my experience. Smaller agencies have the unfortunate habit of stopping when the investigation focuses on a specific suspect. They don't collect physical evidence that they should, etc. Cases where there should be physical evidence lack same because of poor investigation, these cases rely on eyewitness testimony and maybe a confession to support their case.

3) Questionable interrogation practices. Physical violence and threat of same is a big no-no, but is completely impossible to prove without hard evidence. The officer's word will almost always prevail against the word of the accused. At some point, I get enough similar complaints from different accused to draw a reasonable conclusion as to which outfits/officers are doing this sort of thing. Even so, this is rare.

More common are psychological tricks. Again, specfic promises, as well as threats are supposed to be forbidden. This is a bit more common than physical threats, and often takes the form of "Just confess and we will make sure you do not go to prison." The threat is usually directed towards a mother of a very young child. "If you do not confess, I'm calling the child welfare office and you will never see your child again."

Again, usually the tape is not running during this stage, although it is great fun in the rare case that a tape surfaces. You might think that this sort of thing would result in the dismissal of the officer, but you might think a lot of things.

Legal tactics include out and out lies. Taking a DNA swab from the accused and then telling the accused his DNA was found at the scene, in the victim, whatever, when no test was done (or a test was negative). Fake polygraph tests are also a favorite. Implied pressure to not ask for a lawyer is fun, although it can come close to the line.

Several hours of this sort of thing can break a person down to the point where he believes he will be better off if he confesses despite his evidence. He is isolated, given the good cop / bad cop routine, and will often reasonably fear for his safety.

5) Defendant is often pressured to not testify. This usually involves two issues. As a general rule, criminal history is not admissible. However, it can be admissible as impeachment evidence if the defendant testifies about character issues or otherwise opens the door. Even an innocent defendant becomes reluctant. The second issue involves suppressed statements and evidence. If a statement is suppressed that statement can still be used to impeach a defendant. If a statement is tossed as questionable because it was obtained in violation of a defendant's constitutional rights, if that defendant testifies contrary to the statement, the statement comes in.

6) The fiction of "disregard that evidence." If, as above, the illegal confession is used to "impeach" the credibility of the defendant, the jury would be instructed to only consider the statement when deciding the defendant's credibility, and not to consider it as to the ultimate question of guilt. A jury recieves a similar instruction about a prior criminal history, the jury is not to consider it as evidence that the defendant is a criminal in general.

Which is silly. There are good reasons why an illegal statement, or criminal history (with a few exceptions such as proof of a MO) can not be used as proof that a crime occurred. This is the reason for the warning. That a jury is not affected by these things as to the ultimate question seems far fetched.

This also affects any number of issues. Improper closing argument for one, like when an attorney appeals to the grief of the family in asking for a conviction, or otherwise makes an emotional ploy that has nothing to do with the evidence.

An objection is met with at best a warning to disregard. Except in extreme cases, the jury is believed able to disregard a confession, the grief of the family, the idea that what if it were their family member, that the defendant has committed a crime in the past.

7) Witness problems. A petty criminal is arrested for murder. At the time of the killing he was with three other people stealing a car. His alabi witnesses will not testify because they fear prosecution. So a car thief is convicted of murder, while the real murderer is probably off giggling somewhere. Rare, but it happens.

8) General media BS. All police are noble and arrest only the guilty after careful investigation, all defendants are scum that walk because they are not read their rights and juries that acquit are stupid fools that fall for a sharp defense attorney.

That is eight off the top of my head.
 
Bikewer said:
NPR has a news story up this morning:

http://www.npr.org/templates/story/story.php?storyId=90172724&ft=1&f=1012<snip>
What's more to the point is that this case appears to be only the tip of the iceberg in the Dallas/Fort Worth area. Under a newly-elected prosecutor, staff have been reviewing past cases. of the 40 cases reviewed so far, 17 have been found innocent; the victims of not only poor trial and evidence procedures, but also outright prosecutorial malfeasance.
<snip>
Part of this sort of thing is politically driven. Prosecutors are elected to office, and having a good record of large numbers of "successful" prosecutions looks good on one's record. Often, the Prosecuting Attorney's or District Attorney's office can be a stepping-stone to political success. Being "tough on crime" is always a good talking point in elections.
<snip>
Click to expand...

Would it be better if, like in Australia, prosecutors were not elected to office?

I think in Australia miscarriages of justice are rare. I cannot remember a recent one.
 
Bikewer said:
nder a newly-elected prosecutor, staff have been reviewing past cases. of the 40 cases reviewed so far, 17 have been found innocent; the victims of not only poor trial and evidence procedures, but also outright prosecutorial malfeasance.
Click to expand...

Will the original prosecutors face any sort of disciplinary action because of these cases?
 
I have myself wondered if the idea of electing prosecutors is a bad one. Locally, the Prosecuting Attorney and the District Attorney (County and City offices) are elected. These prosecutors then hire the actual attorneys that issue warrants, try cases, get involved in various investigations, and so forth.
So, it's a typical civil-service setup, with "career" underlings doing the lion's share of the work, and the elected official in a supervisory and managerial capacity.
However, it is normally the Prosecutor that takes the glory for a "bad guy well-punished" case, or the heat for screw-ups.
We used to elect Coroners as well, but almost everyone has gone to an appointed Medical Examiner officer now.
 
About the only prosecutor I can recall off-hand who lost his office for prosecuting someone he damn well should have known was innocent was the guy in the Duke lacrosse players incident.
 
timhau said:
Will the original prosecutors face any sort of disciplinary action because of these cases?
Click to expand...

I would be surprised if they did. Frankly, I think this sort of thing should be a capital offense.
 
Just another argument for executing people more quickly after we convict them. Avoids all sorts of nasty questions.
 
timhau said:
Will the original prosecutors face any sort of disciplinary action because of these cases?
Click to expand...
If I understand correctly, prosecutors are immune to prosecution for misconduct, though I know that is not what you are referring to. My personal belief is that if a person is executed wrongly due to misconduct by the police or prosecutors, covering up evidence, falsifying evidence, testifying falsely - they, the officials, should be charged with murder.
 
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WildCat said:
About the only prosecutor I can recall off-hand who lost his office for prosecuting someone he damn well should have known was innocent was the guy in the Duke lacrosse players incident.
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And the lession is. White kids with well of parents are not safe targets.
 
I forgot that the reason Dallas has been able to effectively review these cases is that, unlike many other jurisdictions, they actually kept and preserved any DNA evidence in the cases.
A lot of jurisdictions simply toss stuff after the conviction.
 
rjh01 said:
Would it be better if, like in Australia, prosecutors were not elected to office?

I think in Australia miscarriages of justice are rare. I cannot remember a recent one.
Click to expand...
Prosecutors are not elected in Canada, too, but that doesn't prevent problems due to the police zeroing in on one person early in the investigation.
David MilgaardWP (I've actually met David Milgaard and chatted with him briefly)
Guy Paul MorinWP
Donald MarshallWP

And to add to Suddenly's list of reasons for wrongful convictions:

9) Jailhouse informants. Put a convicted criminal in the same cell as the accused. Criminal then testifies in court against the accused. For the informant, the advantage is he can get transferred to a lower security prison within the system. Sometimes the police have been known to drop certain charges or investigations against the informant.
 
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Bikewer said:
NPR has a news story up this morning:

http://www.npr.org/templates/story/story.php?storyId=90172724&ft=1&f=1012

About an all-too-familiar situation
Click to expand...

Define "all-too-familiar", in terms of percentages of convictions.

, a man who has served 27 years for a rape/murder found innocent by DNA evidence.

What's more to the point is that this case appears to be only the tip of the iceberg in the Dallas/Fort Worth area. Under a newly-elected prosecutor, staff have been reviewing past cases. of the 40 cases reviewed so far, 17 have been found innocent; the victims of not only poor trial and evidence procedures, but also outright prosecutorial malfeasance.
Click to expand...

Were these 40 from a list of suspect cases? Or were they reviewed purely at random?

In the case listed above, exculpatory evidence (the fact that the victim was seen in the company of three other men the night of the murder, two of whom were known to the police as rapists) was concealed from the defense and the jury.
Click to expand...

Definitely wrong.

The accused actually had a good alibi, he was with another woman 30 miles away from the crime, at that woman's aunt's house. Both women made alibi statements...
Click to expand...

Evidently it wasn't that good an alibi since it didn't work.
 
A helpful bit of context when it comes to a later finding of innocence from someone who spends significant amounts of time handling post-conviction issues.

1) Once a jury finds a person guilty, the burden of production and proof fall on the defendant. While nobody knows the thought processes evident from jury deliberations, the law simply assumes that all possible inferences consistent with guilt have been made. So even if the jury doesn't buy the state's claims of A and B, instead convicting based on claims C, E, and F, the law assumes the claims of A and B to be adopted as fact by the jury.

As a result, the convicted person is in a postition where he must prove a negative. Absent unusual circumstances, like the invention of a new method of examining physical evidence, or some other massively dramatic discovery, this is impossible.

2) The best a convicted person can usually do is establish that the trial was not fair in that it did not follow proper procedure required by law. This usually gets jammed up by what is called "harmless error" analysis. This requires a defendant to "show prejudice," to show some tangible harm. When the illegality is constitutional in nature, like where the state hid evidence or engaged in illegal search and seizure, the amount of harm that must be shown is less than when something like wrongful admission of heresay evidence is at issue.

In effect, this gives the court a "don't get out of jail free" card when a court for whatever reason, political or otherwise, just doesn't want to let people go. The defendant is stuck with showing (at least) that a jury would have reasonably decided otherwise, while still weighed down with the issue stated in (1), that any factual issue not affected by the error in procedure is assumed resolved in favor of the state.

There are errors where prejudice is assumed, but there are small in number and tend to be absurdly obvious errors.

3) Some evidence falls through the cracks. From a strictly legal perspective, once a person is convicted there are three ways that new evidence can be considered by a court. Number one is if it is newly discovered, not only was it not known at time of trial, but that it could not have been discovered assuming reasonable diligence on the part of the trial attorney.

The second is where the state has suppressed evidence favorable to the defense. In this context the good faith of the state is not an issue. If an officer has evidence favorable to the defense, and the prosecutor does not know about it, such evidence is considered suppressed.

The third is where the defense attorney's investigation was so poor as to result in a finding that the attorney was so ineffective as to deprive the defendant of his right to counsel.

Also, sometimes this new evidence can be barred by a lawyer's failure to follow certain technical procedures.

5) The biggie. Nobody cares. Prosecutors often claim that there has been no case in the modern death penalty issue where someone was established to be innocent after being executed. First, as explained above, the massive burden placed on someone making such a claim usually makes this impossible. Second, the exhibits and evidence are usually discarded once someone is executed as further review is impossible.

Which is the bigger point. Nobody usually cares. Most executed persons don't have a family with the wealth to pursue a post-execution investigation. Even where substantial problems are discovered with the evidence, but found by a court to be "harmless error," that issue dies with the defendant and the problem is legally declared to not exist.

Those serving less dramatic life in prison without the chance of parole sentences often simply never get review. Their rights to counsel and review are generally statutory and on a state by state basis. This is where things like the innocense project come in. In my state there is some right to an attorney as to a post-conviction proceding, which is what I do.

xxxxxxxxxxxxxxxxxxxxxxxx

To say that the number of those established as innocent is in any way evidence of the percentage of people that are actually innocent is nonsense. These are the people who have had lightning strike in such a way that not only does nearly conclusive evidence of innocence exist, but also that someone gave enough of a crap to look in the first place. Once a jury decides, or is legally considered to have decided, a factual issue, that finding is set in stone unless it is clearly wrong. This is black and white. A "close call" ends the story. One set of random jurors + close case = gospel fact.
 
We've seen a number of cases where a convict was proved to be innocent (DNA, someone else confesses, whatever) and the state seems loathe to release the guy since after all he was "properly convicted".
Never mind that he is clearly innocent. Sometimes you even hear the comment, "well, he's probably guilty of something..."

To some degree this may be due to embarrassment; such cases reflect badly on the prosecution. Not that that's necessarily the case; the trial may well have been conducted properly and the jury (or judge) may have found the circumstances and evidence sufficient for a conviction.

All too often currently the case never gets that far. I've commented before on how the justice system works; a suspect will be "counseled" into a guilty plea since there appears to be enough evidence to convict him. The cases often never reach the trial phase, as the accused accepts a plea-bargain and everyone is happy. (except the accused...)

In regards to the "all too often" phrase commented on by Beerina, I don't have any percentages at all. However, this particular story, and the work of Project Innocence over the last few years indicates a fairly substantial number of improper convictions.
I don't have any idea what the percentage of such convictions to the overall numbers of convictions might be, but arguably locking up innocent people is a pretty dreadful thing.

The high-minded have always said "better a hundred guilty go free than one innocent be convicted". I suppose if you look on the criminal justice system from the eyes of a bean-counter, I suppose a certain percentage of improper convictions might be just part of doing business....
Personally, I'd rather they err on the side of quality control.
 
Bikewer said:
We've seen a number of cases where a convict was proved to be innocent (DNA, someone else confesses, whatever) and the state seems loathe to release the guy since after all he was "properly convicted".
Click to expand...


How about this?

Judge Laura Denvir Stith seemed not to believe what she was hearing.

A prosecutor was trying to block a death row inmate from having his conviction reopened on the basis of new evidence, and Judge Stith, of the Missouri Supreme Court, was getting exasperated. ''Are you suggesting,'' she asked the prosecutor, that ''even if we find Mr. Amrine is actually innocent, he should be executed?''

Frank A. Jung, an assistant state attorney general, replied, ''That's correct, your honor.''

That exchange was, legal experts say, unusual only for its frankness.

....

Jeremiah W. Nixon, Missouri's attorney general, said Mr. Jung's response to Judge Stith was a legally correct answer to an inflammatory hypothetical question.
Click to expand...
 
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