Advancing toward the promise

of justice for all

Tuesday, July 23

Afternoon Session

6 contributors

1. Eyewitness Misidentification

75%

Best practices

in eyewitness

identification

• Earliest description of perpetrator/non-suggestive interview

• Filler selection • Blind administration • Sequential presentation • Non-suggestive lineup display • Instructions • No repeating of exposure • Recording • Confidence statement • Official resistance • Progress to date

Status of

eyewitness

identification

reforms

• Reforms can be enacted through legislation, by highest court action, and through voluntary enactment by police departments

• 17 states have taken some action

6 contributors

1. Eyewitness Misidentification

2. False Confessions

25%

Best practices

to avoid false

confessions

• Use / culture of Miranda

• Videotaping/must include interrogator

• If not, judge should instruct or suppress

• Interrogations < 4 hours

• Reduce official lying re evidence

• Admit expert testimony

• Narrow punishment gap in plea bargaining

Status of best

practices to

avoid false

confessions

• 13 states have enacted legislation requiring video recording

• 6 state supreme courts have required video recording

• 840 jurisdictions have voluntarily adopted recording policies (12,501 total in 2008)

Sources: The Innocence Project, The Bureau

of Justice Statistics

6 contributors

1. Eyewitness Misidentification

2. False Confessions

3. Bad Lawyering

Henry James • James, 20, was arrested because he

lived in the neighborhood, resembled the description given by a white rape victim, and had been at her home

• She identified James after looking at about 75 photos of black men

• She identified James in lineup/in court

• James’ attorney never introduced evidence that rape kit serology testing had excluded James

• Served 29+ years before DNA proved his innocence and he was released.

Photo: Eliot Kamenitz, The Times-Picayune

Examples of

bad lawyering

• Providing no preparation; not conferring with client, not interviewing of witnesses, not preparing a defense, not preparing an opening statement

• Falling asleep in court

• Not bringing expert witnesses

• Failing to investigate alibis

• Failing to appear at hearings

• Missing filing deadlines

Policies to

reduce bad

lawyering

• Improved funding for indigent defense

• Improved training for defense lawyers

• More sanctions from bar associations and courts especially when issues are systemic or indicate misconduct

6 contributors

1. Eyewitness Misidentification 2. False Confessions

3. Bad Lawyering 4. Use of Unreliable Informants, Snitches

16+%

Arthur

Mumphrey

• In 1986 Arthur Mumphrey, 22, was convicted of the raping a 13-year-old girl based on the testimony of co-defendant Steve Thomas.

• Thomas testified against Mumphrey in exchange for a 15-year sentence.

• DNA testing in 2005 showed that the actual perpetrators were Thomas and an unidentified male.

• Gov. Rick Perry pardoned Mumphrey after he had served 18 years for a crime he did not commit.

Photo: Michael Stravato for The New York Times

Source: Innocence Project, National Registry of Exonerations, The New York Times

Policies to

reduce

conviction

errors due to

unreliable

snitches

• Incentivized testimony – with explicit or implicit rewards – likely here to stay

• In 2003 the state of Illinois passed legislation requiring that prosecutors who have promised snitches leniency, immunity from prosecution, cash or anything of value, report

• Also in Illinois, judge must conduct a pre-trial hearing to determine reliability of informant.

Source: 2005 Landmark study Center on Wrongful Convictions, The

Snitch System: How Incentivized Snitches put 38 Innocent Americans on Death Row

6 contributors

1. Eyewitness Misidentification 2. False Confessions

3. Bad Lawyering 4. Unreliable Informants, Snitches 5. Unreliable Forensic Testimony

50%

Doug Prade • Former Akron (OH) police captain convicted in

1998 of murdering his wife Margo • “I didn’t do this…I am an innocent convicted

person. God, myself, Margo and the person who killed Margo all know I’m innocent.”

• Jurors told Dateline NBC that they convicted Prade on forensic dentist testimony of a bite mark through Margo’s lab coat.

• Eight years of court challenges to get the right to do DNA testing on the lab coat.

• Released on Jan. 29, 2012, after Judge Judy Hunter ruled him actually innocent.

Photo: Ohio Innocence Project

• Case handled by the Ohio Innocence Project and, since 2008, lead counsel was provided by the international law firm of Jones Day.

Alarming

problems in

forensic

sciences

• Invalidated scientific testimony on bite marks, footprints, hair, soil, fiber, blood, semen, and fingernails

• 2009 report in VA Law Review (Brandon Garrett & Peter Neufeld) – of 137 cases of DNA proven innocence—with forensic testimony—in 82 cases or 60%: invalid testimony at trial.

• In only 19 of these did defense use its own forensic experts

Alarming

problems in

forensic

sciences

• Numerous initiatives to correct potential errors:

– A federal review of old criminal cases has identified 27 death penalty convictions in which FBI forensic experts may have linked defendants to crimes with exaggerated scientific testimony (Washington Post, July 17)

– $4.5 million grant from Justice Department to test old case (VA) evidence revealed that 6% did not match the convicted man

Progress in

addressing

serious

forensic

science issues

• Four years after report:

The Department of Justice (DOJ) and the National Institute of Standards & Technology (NIST) to create a National Commission on Forensic Science:

— to recommend guidelines for federal, state, and local labs

— to design policy on ethics, training and certification

—U.S. Attorney General can endorse for DOJ’s fed. labs; and recommend for 17,000 others

Progress in

addressing

serious

forensic

science issues

— NIST will take over 21 guidance groups studying specific areas of forensic science to make recommendations on best practices.

Source: Chemical Engineering News

6 contributors

1. Eyewitness Misidentification 2. False Confessions

3. Bad Lawyering 4. Unreliable Informants, Snitches 5. Unreliable Forensic Testimony

6. Government Misconduct

John

Thompson

• In Dec. 1984, Raymond Liuzza was shot in armed robbery; died

• Police arrested John Thompson and Kevin Freeman.

• Freeman agreed to testify against Thompson in exchange for a one-year sentence.

• Photos of the two were published in the New Orleans Times-Picayune.

• Suburban white youth identified Thompson as the man who had attempted a carjacking

Photo: Patrick Semansky/AP

Source: Innocence Project, National Registry of Exonerations, The New York Times

John

Thompson

• Prosecutor decided to try the burglary first to give Thompson a prior conviction and to prevent him from testifying.

• He was convicted of both the attempted carjacking and the murder and sentenced to death.

• Four lawyers at Morgan Lewis in Philadelphia provided pro bono services for 10 years and thousands of hours to the Supreme Court.

• Investigator discovered lab report from carjacking

Source: Innocence Project, National Registry of Exonerations, The New York Times

John

Thompson

• Ten pieces of exculpatory evidence not given to the defense.

• Jury took less than one hour to find him not guilty in second trial.

• Thompson sued District Attorney Harry Connick and Thompson was awarded $14 million in damages for his 18 years in prison.

• U.S. Supreme Court overturned the award.

• Raised national dialogue on prosecutorial accountability and immunity.

Source: Innocence Project, National Registry of Exonerations, The New York Times

Police

Misconduct

• Present in 50% of first 74 cases of DNA proven exonerations; do not have same immunity as prosecutors

– Knowingly being suggestive in lineups

– Coercing confessions

– Planting evidence

– Failing to turn over exculpatory evidence to prosecutors

– Lying or intentionally misleading jurors

– Threatening or rewarding witnesses or informants

Other

concerns

1. Convictions for crimes that never happened Arson

Shaken Baby Syndrome

False sexual assault accusation

Accidents or suicides interpreted as murder

2. Prosecutorial power Absolute immunity

No accountability / negotiating advantage in plea bargaining

No recourse for victims of official misconduct

Other

concerns

Additional Concerns:

3. Forensic sciences – Significant problems • Arson theories debunked

• Shaken baby syndrome

• FBI hair analysis

• Inadequate oversight

4. Prison population and lower caste

5. Unequal application of justice

6. Death penalty

7. Scope and Costs of corrections

What everyday people can do:

1. Elect enlightened prosecutors Seek the truth or defend convictions?

Supportive of post-conviction DNA testing in worthy cases?

Response to an exonerations?

Position on criminal justice reforms?

2. Financially support Innocence Project

3. Advocate reforms to legislators and local police

4. Use social networking to share news of wrongful convictions / change

conventional wisdom

5. Lend out your copy of False Justice!

Bottom line:

U.S. Attorney General Janet Reno: “Our system of criminal justice is best described as a search for truth.”

As citizens of a democracy, it is our responsibility to demand that the pursuit of truth be elevated above just getting convictions.

True justice requires constant diligence, and is the responsibility of every citizen.

Q&A

F A L S E J U S T I C E

Eight Myths That Convict the Innocent

Q&A