j u s t c r i m

On Order: Convicting the Innocent: Where Criminal Prosecutions Go Wrong

Harvard University Press:   Convicting the Innocent:  Where Criminal Prosecutions Go Wrong Brandon L. Garrett

"On January 20, 1984, Earl Washington—defended for all of forty minutes by a lawyer who had never tried a death penalty case—was found guilty of rape and murder in the state of Virginia and sentenced to death. After nine years on death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man.

DNA exonerations have shattered confidence in the criminal justice system by exposing how often we have convicted the innocent and let the guilty walk free. In this unsettling in-depth analysis, Brandon Garrett examines what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated by DNA testing.

Based on trial transcripts, Garrett’s investigation into the causes of wrongful convictions reveals larger patterns of incompetence, abuse, and error. Evidence corrupted by suggestive eyewitness procedures, coercive interrogations, unsound and unreliable forensics, shoddy investigative practices, cognitive bias, and poor lawyering illustrates the weaknesses built into our current criminal justice system. Garrett proposes practical reforms that rely more on documented, recorded, and audited evidence, and less on fallible human memory.

Very few crimes committed in the United States involve biological evidence that can be tested using DNA. How many unjust convictions are there that we will never discover? Convicting the Innocent makes a powerful case for systemic reforms to improve the accuracy of all criminal cases.

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The Amazon.com Excerpted Reviews:

"For six years now I have worked diligently within the innocence movement, and I often hear the question: 'How do wrongful convictions happen?' Convicting the Innocent gives all the answers. It is a fascinating study of what goes wrong, and it clearly shows that virtually all wrongful convictions could have been avoided."
--John Grisham

"DNA testing is revolutionizing our system of criminal justice: this book shows why. By digging deep into the case files of exonerees, Brandon Garrett uncovers what went wrong in those cases and probably in many more we simply can't know about. Garrett makes a powerful case for how to improve criminal justice so that we dramatically reduce the number of wrongly convicted."
--Barry Scheck and Peter Neufeld, The Innocence Project

"This is an invaluable book, a comprehensive, highly readable but well-researched work examining the hows and whys of the law's ultimate nightmare--convicting the innocent."
--Scott Turow, author of Innocent

"How can we stop sending innocent people to our prisons? As you turn the pages of this important and startling book, you will come to realize that wrongful convictions are not accidents. They are the tragic result of a criminal justice system in deep need of reform."
--Sister Helen Prejean, author of Dead Man Walking

"It's common to say that DNA exonerations of innocent defendants provide a unique window on the weaknesses in our system of criminal investigation and trial. But what exactly do we see when we look through that window? Until now the answer has been pretty sketchy. Brandon Garrett has produced a far more detailed and complete picture of the lessons of DNA exonerations than anything else to date. This is an indispensable book for anyone wanting to understand or improve American criminal justice."
--Samuel R. Gross, Thomas and Mabel Long Professor of Law, University of Michigan

 

 

 

Supreme Court Clears Hurdle to DNA Test for Condemned Inmate » Blog of Rights: Official Blog of the American Civil Liberties Union

Yesterday, the Supreme Court found that Texas death row inmate Hank Skinner has the right to pursue testing of DNA evidence that could prove his innocence. Among the outstanding items that still have not been DNA tested: at least three possible murder weapons and a rape kit. SCOTUSblog reported yesterday:

Yesterday's decision means that death row inmates may bring a federal civil rights lawsuit to get evidence that was not DNA tested before or during their state criminal trial. Last March, Skinner came within 24 hours of being executed before the Supreme Court granted a last-minute stay so it could hear the case.

Brian Stull, staff attorney for the ACLU's Capital Punishment Project, said in response to yesterday's decision:

via www.aclu.org

A limited DNA access plea allowed : SCOTUSblog

After seeming to close the door in 2009 to constitutional claims by convicted individuals that they were wrongly denied access to DNA evidence gathered at a crime scene,  the Supreme Court opened the door — but perhaps only slightly — on Monday.  The Court ruled that the federal courts may hear, under civil rights law, a claim by a state prison inmate that his state’s procedures for testing of biological evidence are flawed.  Although the Court majority stressed that it was not raising inmates’ hopes very high, the ruling potentially could have an impact in 48 states that do allow for some testing of DNA — evidence that sometimes provides a powerful demonstration of innocence, or of guilt.  (The federal government also allows access to DNA evidence for testing.)

The Court’s new 6-3 decision in Skinner v. Switzer (09-9000) answered a question the Court had agreed to decide, but left open, two terms ago in District Attorney’s Office v. Osborne (08-6), decided June 18, 2009.

In Osborne, the Court by a 5-4 majority ruled that prisoners do not have a constitutional right of access to DNA evidence.  That decision, however, rejected a claim only of a “substantive due process” violation in denial of access to such material.  On Monday, the Court majority in Skinner found a limited right of “procedural due process,” which the majority opinion characterized as leaving inmates “slim room” to pursue such a challenge.  It left it to lower courts to decide whether a Texas death-row inmate, Henry W. Skinner, will actually win his claim that Texas’ DNA evidence law was used wrongly to deny him a chance to test biological material — not previously tested by the state.  Police had gathered that evidence in 1993 at a house in Pampa, Texas, where a woman and her two adult sons were murdered.  The woman was Skinner’s girlfriend; he shared the house with her and her sons.

via www.scotusblog.com

Wrongful Convictions and DNA Evidence | The Diane Rehm Show from WAMU and NPR

Cornelius Dupree Jr., center, raises his hands in celebration with his lawyer Nina Morrison, left, and attorney Barry Scheck in Dallas on Tuesday, Jan. 4, 2011. Dupree served 30 years for rape and robbery before being exonerated by DNA evidence.

A Texas judge this week declared Cornelius Dupree an innocent man, clearing him thirty years after he was wrongfully accused of rape and robbery. More than two-hundred-sixty Americans have been exonerated by DNA evidence since nineteen-eight-nine. Many, like Cornelius Dupree, were victims of eyewitness misidentification. In other cases, improper forensic science, false confessions, or unreliable snitches played a role. The criminal justice community is trying new ways to avoid false imprisonment– from independent investigations to post-conviction case reviews. Using DNA to overturn wrongful convictions.

via thedianerehmshow.org

[UCI's Bill Thompson, Professor of Criminology, Law and Society, appears as a guest on NRP's Diane Rehm Show Thursday, January 6, 2011. The show will discuss causes of false convictions]

yes, california state prison inmates may be required to provide blood samples...

Hamilton v. Brown,  No. 09-1523 (9th Cir. Jan. 4, 20110).  TASHIMA, Circuit Judge:  "We must decide whether California state prison inmates constitutionally may be required to provide blood samples for DNA identification under California’s DNA and Forensic Identification Database and Data Bank Act of 1998, as amended, Cal. Pen. Code § 295 et seq. (the “Act” or the “California DNA Act”). Pro se plaintiff George Hamilton, a California state prison inmate, alleges that prison officials forcibly extracted a blood sample for  DNA identification without his consent. He contends that this violated his rights under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution and under California state law. The district court dismissed Hamilton’s second amended complaint (“SAC”) with prejudice.1 This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm."

YES, YOU ARE A SUSPECT (video provided by Los Angeles Superior Court)

     

[VIDEOS CHOPPED INTO SHORT CLIPS - ALL AVAILABLE HERE] LAPD homicide detectives' video interrogation of LAPD Detective Stephanie Lazarus. Lazarus is being interrogated re the murder of Sherri Rasmussen, her ex-boyfriend's wife, in 1986.   At the time of the murder, Lazarus had been on the police force two years. It's 24 years later ... Sherri has been on the LAPD force for 26 years and has been promoted to Detective rank ...

West Memphis 3

California Correctional Crisis. ... Damien Echols Receives New Trial: Evidence Gate Wide Open

"Today, in an Arkansas Supreme Court decision that will thrill supporters of the West Memphis Three, Damien Echols received a new evidentiary hearing, in which all evidence, including the DNA evidence that exculpates him and implicates others in the murder, will be considered.

Echols and co-defendants Misskelley and Baldwin were the subjects of the documentaries Paradise Lost and Paradise Lost 2: Revelations. Having read much about the case, I am convinced of their innocence and very much hope that the new hearing will provide the defendants long-overdue justice."

scotus blog part 3 ... skinner

SCOTUS BLOG Part #3: Inside Texas–Dallas D.A. “without a doubt” would test DNA evidence

"...  It seems that in the pursuit of truth, like real estate, location is everything.  Had convicted murderer Henry Skinner requested post-conviction DNA testing in Dallas instead of Pampa, where the triple homicide occurred, the Supreme Court would not be hearing arguments in Skinner v Switzer this Wednesday — or any other time.

"While Pampa’s District Attorney Lynn Switzer decided to “stand firm” and deny access to the Skinner evidence, 370 miles away, in Dallas, fellow chief prosecutor Craig Watkins, takes an opposite stance. “If I was faced with that decision, it would be an easy one,” he told me recently. “Without a doubt, I would test all the evidence. Whether Mr. Skinner waived his right to test the evidence at his trial is irrelevant. Whether justice has been served is what’s relevant. ...” [RESTOF SCOTUSblog STORY]

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I would not be surprised one bit if the DNA evidence in question, if tested, ultimately confirmed SKINNER's guilt. 

Why not just  test the evidence?  Respondent's counsel have shared a podcast with SCOTUSblog describing the argument against testing.  Listen @ Argument day podcast with respondent’s counsel in Skinner v. Switzer.

 

"the day after"

The Day After: What’s Next for Hank Skinner?  (Innocence Blog: March 25, 2010) - "The court’s stay is temporary, however, simply giving the justices more time to decide whether to take on a full review of Skinner’s appeal. If the court decides not to grant a review, the stay will terminate..."

death practice in texas

I've been following the Henry Skinner death warrant insanity, horror, ... ?  His last second stay by SCOTUS is a huge and improbable victory for the defense team and of course their client – And it doesn't matter that the stay may be fleeting – The only thing that matters is that this team of attorneys saved their client's life last night, absolutely.

Even if Skinner's appeal or stay or claim of actual innocence otherwise evaporates, even if he is executed one month or one week from today, the defense team saved their client's life last night within 30 minutes of execution.

What's it like to do that as an attorney?  Professor David Dow knows and he writes honestly of the torturous process of capital defense practice in Texas in his book,  The Autobiography of an Execution ... If you think the Skinner insanity is unprecedented, you would likely be wrong.  Folks with viable "actual innocence" claims get put down in Texas and other states.  Want to know what it feels like when you lose and your client is executed?  You can't know.  I can't know.  But Professor Dow's book opens a window onto the process and his death penalty team's honesty and integrity are apparent on every page.

"dna & due process" | ssrn open access

Garrett, Brandon L., DNA and Due Process (January 15, 2010). Fordham Law Review Vol. 78, 2010; Virginia Public Law and Legal Theory Research Paper No. 2010-10. Available at SSRN: http://ssrn.com/abstract=1562820

Abstract:    

"The Supreme Court in District Attorney’s Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the U.S. the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that contrary to early accounts, the Court did not reject a constitutional right to post-conviction DNA testing. Despite language suggesting the Court would not “constitutionalize the issue” by announcing an unqualified freestanding right, Chief Justice Roberts’ majority opinion proceeded to carefully fashion an important, but qualified and derivative procedural due process right. While denying relief to Osborne for narrow factual and procedural reasons, the Court’s ruling swept more broadly. The Court held that states with post-conviction discovery rules, as almost all have enacted, may not arbitrarily deny access to post-conviction DNA testing, and then pointed to the generous provisions of the federal Innocence Protection Act as a model for an adequate statute. The Court also continued to assume that litigants may assert constitutional claims of actual innocence in habeas proceedings. In this Essay, I explore the contours of the Osborne due process right, its larger implications for constitutional interpretation, and more specifically, whether the decision has the potential to create pressure on the States to provide meaningful avenues to for convicts to litigate their innocence."

Adam Liptak's piece took a different read -- "Justices Reject Inmate Right to DNA Tests (By ADAM LIPTAK. New York Times June 18, 2009):  Prisoners have no constitutional right to DNA testing that might prove their innocence, the Supreme Court ruled on Thursday in a 5-to-4 decision.  The court divided along familiar ideological lines, with the majority emphasizing that 46 states already have laws that allow at least some prisoners to gain access to DNA evidence. “To suddenly constitutionalize this area,” Chief Justice John G. Roberts Jr.  wrote for the majority, “would short-circuit what looks to be a prompt and considered legislative response.”

[A remarkably thorough case archive is available free @ SCOTUSwiki]

guilt | #s

Edward Humes, "Guilt (by) the Numbers: How fuzzy is the math that makes DNA evidence look so compelling to jurors?" California Lawyer (April 2009):

"... When you trawl through immense digitized compendiums of genetic fingerprints, "there is an undue risk of false matches," says former Food and Drug commissioner Donald Kennedy ...The science, Kennedy adds, "is being shut out of court." And even experts who say the danger of false matches is being exaggerated acknowledge that as offender databases continue to grow, the chances of convicting the innocent will only increase..."