Last month, Frank Sterling was exonerated by DNA evidence after being incarcerated 18 years for a crime he did not commit. Sterling was wrongfully convicted of murdering an elderly woman in Rochester, New York in 1988. His conviction was based entirely on a false confession. In the meantime the actual killer remained free, and six years later he murdered four-year-old Kali Poulton. This tragedy leaves no question that addressing the flaws in our criminal justice system that lead to wrongful convictions is a public safety imperative.
On April 5th Ohio Governor Ted Strickland signed a reform bill that will help reduce wrongful convictions and improve the fairness and accuracy of our criminal justice system. Among the measures included are safeguards to improve the eyewitness identification process by requiring police to use a more accurate protocol for administering live and photo lineups. The new protocol reflects the growing awareness that eyewitness evidence is fragile, and much like trace physical evidence must be collected very carefully, or it may become tainted.
San Francisco's top public defender, Jeff Adachi, recently called for the city's crime lab to become independent of the police department. This announcement comes on the heels of a series of scandals in the San Francisco Police Department's forensic laboratory initiated by the discovery that a criminalist was stealing cocaine from evidence storage facilities. What initially seemed to be a problem with one unethical employee has led to the unearthing of myriad problems within the lab, including two cases of tainted DNA samples. Moreover, a troubling audit was released showing an improper maintenance of chain of custody of evidence, inadequate record keeping, and a lack of cleanliness in the overall facility. Multiple legal challenges raised in the aftermath of the scandal, including a murder case, have pointed to the possibility that police and prosecutors withheld vital information about the drug thefts from defendants' attorneys.
Earlier this month, Orleans Parish District Judge Lynda Van Davis granted a new trial for Michael Anderson, who was convicted of murder and sentenced to death in a trial plagued with problematic evidence. Prosecutors have appealed the ruling and indicated that they will go forward with a retrial if necessary, so the question of Anderson's guilt or innocence is far from settled. What is clear today, however, is that his first trial was marked by prosecutors' troubling concealment of important information that undermined the credibility of key witnesses against him. Playing fast and loose with such evidence is unacceptable. In a death penalty case, it is unconscionable.
After seventeen years, Gregory Taylor was finally freed on February 17th when the three judge panel of the North Carolina Innocence Inquiry Commission unanimously ruled to exonerate him. North Carolina created the commission to investigate and evaluate post-conviction claims of innocence in 2006 and is the first of its kind in the United States. Taylor, wrongfully convicted of first degree murder in 1993, is the first person to be exonerated by the commission.
On March 1 Texas Governor Rick Perry officially pardoned Timothy Cole, who was wrongfully convicted over two decades ago. Tragically, the DNA tests that proved Cole's innocence came too late: he died in prison in 1999 while serving time for a rape he did not commit. A faulty lineup led to inaccurate eyewitness evidence in Cole's case, which serves as a reminder of the urgent need for eyewitness identification reforms that increase reliability and reduce the risk of mistakes. Cole's case was one of the thirty-nine Texas wrongful convictions exposed by DNA profiled in The Justice Project's report Convicting the Innocent: Texas Justice Derailed.
Concerns about the validity of forensic evidence have come to the fore in recent years following a series of wrongful convictions and other scandals across the country. The National Academies of Science (NAS) identified a number of systemic flaws that demand attention in their 2009 report Strengthening Forensic Science in the United States: A Path Forward. Yet today, hardly any states have laws providing meaningful oversight of the forensic laboratories that analyze crucial evidence upon which many criminal cases depend.
As advocates of justice, prosecutors play a unique and powerful role in our justice system. Yet too often, prosecutors fall prey to a pervasive "convict at all costs" culture, and neglect their ethical duty to protect the innocent and guard the rights of the accused. The recent actions of Santa Clara District Attorney Dolores Carr demonstrate this troubling culture. Carr has directed her office to boycott the courtroom of Superior Court Judge Andrea Bryan, who barred the retrial of a case overturned due to Santa Clara prosecutor Troy Benson's prosecutorial misconduct. The finding of misconduct against Troy Benson presents an opportunity for Santa Clara prosecutors to examine what may have led to Benson's misconduct, and take steps to ensure abuses of power do not take place again in the future. However, instead of addressing her colleague's misconduct, which Judge Bryan called "grossly shocking," Carr is calling for open criticism of the judge responsible for upholding her constitutional obligation to reverse convictions prejudiced by egregious prosecutorial misconduct.
Texas has seen more than its share of controversy surrounding forensic science in recent months.
Most recently, the Houston Chronicle reported that an audit of the Houston Crime Lab’s fingerprint division identified problems in more than half of the 548 cases selected for review.The problems discovered were serious enough to lead the authorities to require that more than 4000 violent crime cases from the past six years be reanalyzed—a process that no doubt will be very costly for the city of Houston. According to the Chronicle, the Latent Prints Comparison Unit suffers from “significant deficiencies with staffing, a lack of proper supervisory review, inadequate quality control, technical competence inconsistent with industry standards, insufficient training and inadequate standard operating procedures.”The Houston Police have confirmed that a criminal investigation into misconduct by at least one employee of the fingerprint unit has been opened.In addition to the shoddy work that was done, the unit faces a backlog of some 6000 cases.
Shoddy forensic science has led to a major setback in a murder investigation that could close the door on efforts to bring the killer to justice. The family of murder victim Suzanne Jovin was recently informed that the DNA evidence in her case was useless because it was contaminated by a lab technician. A DNA sample collected from under Jovin's fingernails after her 1998 murder was found to match that of the lab worker that processed the evidence, not her killer as was previously assumed.
In recent years, forensic science has become a staple of criminal prosecutions. Jurors increasingly expect trials to include conclusive forensic evidence pointing to the guilt or innocence of a defendant. Although forensic testing has a reputation for producing accurate and objective evidence, it is not flawless. In fact, a lack of quality standards in forensics labs and of adequate training for technicians has resulted in potentially important evidence being rendered worthless or just plain wrong far too often. Moreover, since most states lack any type of meaningful oversight of its crime labs, mistakes continue to occur and problems remain uncorrected.
All too often, prosecutors' offices fall prey to a culture of conviction-seeking at all costs. Prosecutors who become singularly focused on conviction rates often neglect their ethical duty to protect the innocent and guard the rights of the accused. The Kern County District Attorney's Office in California provides a clear example of this pitfall, boasting that under District Attorney Ed Jagels' supervision, the office "has had the highest per capita prison commitment rate of any major California County." What the office fails to highlight is the startling twenty five wrongful convictions that the office has accrued during Jagels tenure as District Attorney. Jagels recently announced his retirement, and despite his appalling record, he hopes to personally select his successor.
The troubling culture apparent in the Kern County office is not the exception. Due in large part to the public pressure to convict and the widespread failure of state bars and disciplinary agencies to hold prosecutors accountable for ethical violations, this culture of "convict at all costs" is a nationwide problem.
Charged with dual roles as advocates and ministers of justice, prosecutors are the most powerful actors in our criminal justice system. They have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Clearly, these decisions have a lasting impact on all those under the purview of the justice system. However, despite the great power of prosecutors, few are held accountable for violations of their ethical obligations.
Today, the Supreme Court will hear oral arguments in Pottawattamie County v. McGhee, which is a wrongful conviction case about prosecutorial immunity. Specifically, the Court will decide whether the prosecutors in a 1978 murder trial may be sued as individuals for the wrongful conviction of Curtis McGhee Jr. and Terry Harrington. McGhee and Harrington allege that the prosecutors violated their rights by coercing false testimony during the investigation and using that testimony at trial. The attorneys representing the prosecutors in question argue that while prosecutors are immune from lawsuits when acting within the scope of their job, state bar and disciplinary agencies provide sufficient punitive mechanisms to punish prosecutors for misconduct. It has been our experience that state bars and disciplinary agencies fall woefully short of holding prosecutors accountable for their misconduct.
Texas has had more than its share of tragic wrongful convictions. Of the more than 40 people exonerated by DNA in Texas, one of the most heartbreaking cases is that of Timothy Cole. Cole was wrongly convicted in 1986 for a Lubbock rape. DNA testing conclusively exonerated him last year and identified the true perpetrator. But the exoneration came too late. In 1999, Cole died in prison of a severe asthma attack, an innocent man.
So far, Texas has been slow to respond to the long list of mistakes that exist in each of these wrongful convictions. These mistakes have forced innocent people to spend over 500 years in prison for crimes they did not commit. But that may be about to change. Last May, the Texas Legislature approved a bill creating the Timothy Cole Advisory Panel on Wrongful Convictions, and directing the Texas Task Force on Indigent Defense to work with the panel on a report on needed reforms to prevent wrongful convictions. The Cole Panel's inaugural meeting is slated for today.
Two more innocent men have been freed from death row. Just last week, Yancy Douglas and Paris Powell became the 137th and 138th people to be exonerated from death row. The two men were convicted of a drive-by shooting in 1993 based on the testimony of an in-custody informant who had been offered leniency from the prosecution. The prosecutors at trial withheld information about this plea-deal from the defense, which resulted in a new trial. All charges against the two men have now been dropped because of the unreliability of the in-custody informant's testimony, the only evidence that linked Douglas and Powell to the crime.
These exonerations highlight the power prosecutors have in securing convictions by utilizing in-custody informant testimony, even when no physical evidence links a defendant to the crime. Testimony by in-custody informants or "jailhouse snitches" as they are often referred, is a leading cause of wrongful convictions.
Governor Perry's removal of these three members from this commission has drawn national attention and sharp criticism because there is concern that his appointed replacement of the commission chair, John Bradley, may slow or stifle the investigation. Bradley has already cancelled a scheduled meeting on October 2, where the commission's retained fire expert, Craig Beyler, was to present and discuss his report. Beyler's report, released to the media under public information laws, confirms findings from three other expert reviews: that the arson evidence in the Willingham case was without scientific validity.
The canceled meeting is not the only casualty of this drastic change. Commission members have also decided to postpone a series of important roundtable discussions focused on a recent report of the National Academies of Science (NAS) about serious weaknesses in the nation's forensic systems because of the distractions caused by the shakeup.
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