Two More Innocent Men Released in Texas as Critical Reforms Wait
By Edwin Colfax
Two more tragic injustices have been uncovered in Houston in the span of a week, just as a panel created by the Texas legislature prepares recommendations on how to prevent wrongful convictions.
On July 23, Allen Wayne Porter was released from prison after DNA testing and other new evidence proved he did not commit the 1990 rape for which he was sent to prison 19 years ago. One week later Michael Anthony Green was released after spending 27 years in prison for a rape he did not commit.
It now appears that the victims in these cases may never get the justice they are due. Although the actual perpetrators have been identified, they cannot be prosecuted because the statute of limitations has expired.
In both cases, Harris County prosecutors were instrumental in developing the exonerating evidence and supported the releases – a remarkable change from the previous D.A.’s handling of innocence cases. The potential for a new era of cooperation among at least some prosecutors is most welcome, and critical to efforts to rescue the innocent from prison. Just as important, however, are the changes needed to prevent these wrongful convictions from happening in the first place. Such reforms are not being implemented in most parts of Texas, and putting those safeguards in place needs to be a top priority of the state’s leaders.
Last year the Texas Legislature created the Timothy Cole Advisory Panel on Wrongful Convictions, which will present its recommendations in advance of the 2011 legislative session. Among the panel’s key objectives is improving the reliability of eyewitness evidence, a factor in 85 percent of Texas DNA exonerations.
The eyewitness procedures used against Green, for example, show how poor eyewitness identification procedures compromise the accuracy and reliability of evidence. The results are devastating for the wrongfully convicted, and public safety is threatened when the actual criminals are unintentionally left on the street.
Shortly after the rape, Houston police stopped Green and another man while walking home, and the two didn’t object to participating in a “show-up” procedure with a crime victim. When police brought the victim to look at the two, she said neither was among her assailants, and they were released.
A week later, Green was caught driving a stolen car, and police quickly suspected him of the rape. Despite the fact that the victim had already failed to identify Green in person during a “show up” shortly after the crime, Green was put in a photo lineup. This time the victim identified him as a perpetrator, and also picked him out of a live lineup later that same day. Despite the lack of any physical evidence tying Green to the crime scene, the victim’s mistaken identification led to his conviction and 75 year sentence.
Scientists studying eyewitness memory have established that allowing repeated presentations of a suspect to a witness greatly compromises the reliability of any subsequent identification. In part because of what scientists call unconscious transference, it becomes unclear whether the suspect is familiar to a victim from the crime, or from a previous identification procedure. Based on the chain of events that led to the victim’s identification of Green, this clearly seems to be a factor. Further, there is every indication that the officers who presented the lineups to the victim were heavily involved in the case and already suspected Green. Experts have long noted that officers who are aware of which person in a lineup is the suspect can inadvertently (or even intentionally) cue the witness toward the suspect. A more carefully designed protocol is essential to ensure objectivity and reliability.
States such as North Carolina, New Jersey, Wisconsin and others have recognized the importance of careful protocols for collecting eyewitness evidence, and have passed laws ensuring that scientifically sound procedures are used to ensure maximum reliability and objectivity. Despite the importance of proper procedures for eyewitness accuracy, an extensive survey of Texas law enforcement departments by The Justice Project revealed that only 12 percent had any written policies on lineup procedures, and only a tiny fraction have implemented scientifically valid best practices for gathering identification evidence from eyewitnesses.
Even prior to the latest exonerations in Houston, Texas already led the nation with 40 wrongful convictions exposed by DNA evidence, and in the span of a week two more wrongfully convicted men were freed based on DNA testing and other evidence of innocence. These two most recent cases are painful reminders of how slowly Texas has been to implement reforms that can prevent such horrible injustices.
Texas cannot do without eyewitness evidence, so it is essential that steps be taken that are necessary to make sure that evidence is as accurate as possible. No reforms can guarantee that mistakes will not be made. When poor procedures lead to preventable errors, however, the failure to implement needed reforms is itself a crime.
Edwin Colfax is Texas Policy Director for The Justice Project.
Recording Interrogations is a Public Safety Imperative
By John F. Terzano
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.
Sterling confessed to the murder after a twelve-hour interrogation that followed his 36-hour truck driving shift. Almost immediately, he recanted his confession. Police focused on Sterling from the outset because of his brother’s troubled relationship with the victim years earlier. In doing so, they disregarded evidence that implicated another man, Mark Christie. Sterling had no prior criminal record; however, once the case was brought to trial the confession sealed a conviction. DNA testing later revealed that Christie was the true perpetrator.
While many find it hard to fathom, false confessions are a well-documented reality. Approximately 25 percent of the first 200 individuals exonerated by DNA evidence falsely confessed to crimes they did not commit. A confession can be the most powerful evidence at trial, and can overwhelm evidence pointing to the defendant’s innocence. Electronically recording interrogations provides access to a reviewable record that helps judges and jurors clearly evaluate a suspect’s statements and gives them the information they need to intelligently assess voluntariness and reliability.
Many police and prosecutors who work in jurisdictions that record interrogations have recognized that recording helps to both develop the strongest evidence and convict the guilty while protecting against false or coerced confessions which can lead investigators away from the true perpetrator. The Justice Project details the best practices for recording interrogations, and provides a comprehensive rationale for changes in procedure in the policy review Electronic Recording of Custodial Interrogations.
Hundreds of police departments around the country electronically record interrogations. Additionally, a growing list of states, including Alaska, Minnesota, New Jersey, North Carolina, New Mexico, Maine, Wisconsin and Illinois, have mandated electronic recording in order to strengthen the quality of evidence available for criminal prosecutions. Other states must join this growing list to help prevent wrongful convictions like Frank Sterling’s. Modernizing police work with readily available recording technology is the best way to ensure that a false confession will not shut down a police investigation while the true perpetrator remains at large.
Ohio Latest in Reform Trend to Prevent Wrongful Convictions
By John F. Terzano
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.
Ohio joins a growing trend of states acting to prevent wrongful convictions through implementation of eyewitness identification best practices that are the fruit of decades of scientific research. A handful of states have passed bills that implement or encourage more reliable procedures. Some states, such as California and Texas, have come close, and efforts there continue. Similar legislation has also been introduced in other states from Hawaii to New Hampshire.
This encouraging trend has been a long time coming. The criminal justice system’s inertia, combined with skepticism about reform ideas that come largely from scientific researchers rather than law enforcement itself, has made progress slow. Almost without fail, the objections to new procedures are based on worry about the unknown, rather than on experience. Further, some in law enforcement may be concerned that by making changes today they are implicitly admitting that they have been doing things badly heretofore.
Only in recent years, however, have law enforcement leaders been made aware of workable alternatives to traditional procedures. What is finally happening is that law enforcement is modernizing their procedures based on the latest research. It is never easy to change the settled ways of bureaucracies, and law enforcement is no different. With progress in Ohio we are seeing at long last that much needed change is coming.
To remind us of the urgent need to act, we need only look at the victims of eyewitness error that may well have been preventable: Freddie Peacock, James Bain, and Forest Shomberg. They spent years in prison for crimes they did not commit because of erroneous eyewitness testimony, yet none of the states that wrongfully convicted these men have implemented eyewitness reforms.
The reforms passed by the Ohio legislature, which mirror key reforms highlighted in The Justice Project’s publication, Eyewitness Identification: A Policy Review, are based on scientific research about practices that lead to eyewitness misidentification. For example having the officer conducting the lineup be unaware of which person in the lineup is the suspect (or a functionally equivalent method) can prevent inadvertent influencing of the witness and thus improve the evidentiary value of an identification. Documenting a witness’s degree of certainty at the time of identification can help address the well-documented manipulation of witness confidence due to reinforcing feedback, thus providing jurors with a clear picture of the circumstances of an identification. These and other reforms greatly improve the reliability of eyewitness evidence with only modest changes in procedure.
Fortunately, as more and more jurisdictions implement the needed reforms, their experience provides the definitive response to the worries expressed by those resistant to change. In big cities and small, from New Jersey to North Carolina to Wisconsin, the actual experience of jurisdictions that have implemented reform has demonstrated that it is pragmatic, inexpensive, and most importantly, improves the reliability of evidence in our criminal justice system. Now that we know better, failing to act to implement the reforms we know will reduce wrongful convictions becomes nothing less than reckless indifference.
Crime Labs Need Independence and Robust Oversight to Ensure Justice
By John F. Terzano
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.
Jailhouse Snitches Sabotage Justice with Unreliable Evidence
By John F. Terzano
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.
Judge Davis’s ruling was based on prosecutors’ failure to provide a videotaped interview with the sole eyewitness that highlights significant inconsistencies in her story and put her at the scene hours after the crime. Prosecutors explained this as an oversight that was due to their several post-Katrina office moves. More disconcerting, however, was the failure to disclose what Judge Davis called “the deal of the century” given to a jailhouse snitch witness, as that failure cannot be blamed on post-hurricane logistical challenges. In her opinion, Judge Davis noted that without the inconsistent eyewitness, “Anderson’s conviction is based on the testimony of three jailhouse snitch witnesses, one of which received the deal of the century that was not revealed prior to trial.”
Jailhouse “snitch” and informant witnesses often provide incriminating testimony during criminal proceedings in exchange for reduced sentences or other benefits. This practice provides powerful incentives for witnesses to lie, and makes their testimony notoriously unreliable. Despite this fact, police and prosecutors often use this highly unreliable form of evidence to secure convictions. The danger of this kind of testimony is not theoretical: in-custody informant testimony is a leading cause of documented wrongful convictions and a factor in over fifteen percent of the DNA exoneration cases nationally.
Because snitch testimony is so risky, it is imperative that such evidence be subjected to careful scrutiny and safeguards. Illinois has led the way by requiring pretrial reliability hearings in homicide cases, in which the state must demonstrate that a jailhouse snitch’s proffered testimony is credible before it can be presented to the jury. Other important safeguards include mandatory, automatic pretrial disclosures of information related to jailhouse snitch testimony, including witness compensation arrangements and other information bearing on witness credibility. States should also require corroboration of statements made by jailhouse snitches. The Justice Project’s common-sense reforms designed to protect the system from unreliable snitch testimony can be found in In-custody Informant Testimony: A Policy Review.
There is an emerging consensus among criminal justice experts on the need for reform. Alexandra Natapoff, a leading national expert on the issue, recently published a new book, Snitching: Criminal Informants and the Erosion of American Justice, which extensively details the threat that snitch testimony poses to the criminal justice system. Natapoff also outlines the need for new safeguards to prevent snitches from undermining justice.
By improving the standards for admissibility of jailhouse informant evidence at trial, states will increase the transparency and openness of the process and help ensure that the most reliable evidence is making it into the courtroom and before the jury and will increase public faith in the criminal justice system.
Another Exoneration Demonstrates the Need for Criminal Justice Reform
By John F. Terzano
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.
Over 250 people have been exonerated by DNA evidence in the United States. Many others, like Taylor, did not have the benefit of DNA evidence that could clearly identify the perpetrator. These cases demonstrate the importance of keeping our courts open to all credible evidence that a mistake has been made. Unfortunately, in most jurisdictions, barriers of legal procedure too often keep similarly situated defendants from having their claims of innocence considered.
With the creation of the Innocence Inquiry Commission, the judiciary and legislature in North Carolina rightly recognized the need for a mechanism to identify wrongful convictions and exonerate individuals like Taylor who languish in prison for crimes they did not commit. In addition to taking steps to exonerate the wrongfully convicted, it is critical that jurisdictions evaluate the causes of these miscarriages of justice, and take steps to increase the fairness and accuracy of the criminal justice system. Each wrongful conviction teaches us important lessons about how the system is prone to error, and what can be done to fix it.
For example, Gregory Taylor was wrongfully convicted in large part due to inaccurate forensic testimony. Trial testimony to the effect that blood was found on Taylor’s SUV near the scene of the crime on the night of the murder was contradicted by a later test conducted by State Bureau of Investigation that found no blood was present. That finding, however, was never provided to prosecutors, defense attorneys or the court. The result of that failure was devastating.
False or misleading forensic expert testimony is a leading factor contributing to wrongful convictions. The Justice Project offers recommendations and solutions for improving the practices and standards of forensic science in Improving the Practice and Use of Forensic Science: A Policy Review. The reforms recommended in the policy review are designed to implement systemic and necessary changes to the practice and use of forensic science, including the requirement that all forensic science labs develop internal structures and policies to prevent bias in testing and analysis, and to better manage the flow of information between law enforcement investigators, analysts, and prosecutors. These kinds of improvements can dramatically improve the quality and reliability of forensic evidence, preventing the kinds of errors that led to Gregory Taylor’s wrongful conviction.
Each wrongful conviction evinces the urgent need to reform our criminal justice system. A fair and accurate system not only prevents wrongful convictions, it more effectively identifies the guilty and strengthens public trust in our system of justice.
Cole Pardon a Stark Reminder of the Need to Fix Eyewitness Procedures
By Edwin Colfax
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.
Eyewitness identification reform is one of the issues being addressed by the Timothy Cole Advisory Panel on Wrongful Convictions, created by the Texas Legislature in 2009 to make recommendations on the prevention of wrongful convictions. One reality the Cole Advisory Panel is confronting is the complete lack of statewide standards for the conduct of identification procedures in the vast majority of jurisdictions in Texas. The numerous eyewitness mistakes that have been identified so far have led to a great deal of scientific research on eyewitness memory and how it can go wrong. The upshot of this research is that we must collect eyewitness evidence with the same care that we collect trace physical evidence, according to carefully designed protocols, in order to prevent the evidence from becoming tainted or ruined. Researchers have identified a number of changes to lineup procedures that can substantially cut the risk of misidentification and produce more reliable evidence. Unfortunately, most police departments and sheriff’s offices have no written policies for conducting lineups at all, and of those that do, only a small fraction include best practices that increase accuracy.
As the Cole Advisory Panel and our legislators once again grapple with this issue, there are two key benchmarks for a successful solution they should keep in mind. First, the state must require that scientifically sound best practices are followed in the conduct of lineups. To merely suggest, educate or recommend changes has proven inadequate and the accuracy of eyewitness evidence is too important to be optional. Second, the solution must address all known sources of inaccuracy in existing procedures, including: suggestive lineup composition, inadvertent cueing of witnesses, and the natural tendency on the part of some witnesses to identify someone in the lineup based on the assumption that the perpetrator must be present. In short, we need to be sure that the solution is comprehensive and is strong enough to ensure that good procedures are enacted and followed.
Governor Perry’s pardon is long overdue because of technical legal concerns related to pardoning a deceased person. Those concerns have finally been addressed. Now is the time for all stakeholders in the criminal justice system to work through the remaining details of eyewitness reform. They must do so in a way that guarantees that police across Texas implement the changes that will increase the reliability of evidence. Until then, pardon or not, we will not have fully honored the memory of Timothy Cole.
Meaningful Oversight is Necessary for Reliable Forensic Science
By John F. Terzano
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.
Failing to Punish Prosecutorial Misconduct Only Invites More
By John F. Terzano
On the last day of 2009, federal district court judge Ricardo Urbina dismissed homicide charges against five former Blackwater security guards involved in a shooting that killed fourteen Iraqi civilians in 2007. Judge Urbina’s decision cites egregious prosecutorial misconduct by the federal prosecutors handling the case as the reason for the dismissal. The dismissal comes at the end of a year that saw at least a dozen cases of federal prosecutorial misconduct, including the well known Ted Stevens fiasco. These cases and others reinforce an emerging consensus that we must do more to ensure that our prosecutors live up to the standards of professionalism and fairness on which our system depends.
Forensic Lab Problems Cry Out for More Oversight and Quality Standards
By John F. Terzano
A spate of recent news reports has called into question the objectivity of some forensic evidence and highlighted the need for effective oversight mechanisms for the nation’s crime labs. Fingerprint analysts told The Missouri Lawyer that when police officers have access to the labs, they often pressure the fingerprint examiners to secure arrests. In December, the New York State Inspector General released a report revealing that forensic analyst Gary Veeder falsified hundreds of results over a fifteen year period. The Phoenix, Arizona Police Department announced plans to investigate claims that lab technicians in the crime lab undermine the integrity of criminal investigations by leaving evidence behind at scenes and disposing of fingerprint evidence. In December, Donald Gates walked free from prison after his exoneration for a rape and murder he did not commit when it was revealed that FBI lab technician Michael Malone provided false testimony and inaccurate testing results. Read More
Prosecutors Must Seek Justice, Not Merely Convictions
By John F. Terzano
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.
Prosecutors have sole responsibility for deciding whether to file charges, what charges to bring, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. These varied and unique duties render prosecutors the most powerful actors in our criminal justice system. Yet despite their power, prosecutors are rarely held accountable for violating their ethical obligations. This lack of accountability fosters a problematic culture that plagues prosecutors’ offices around the country and contributes to wrongful convictions.
Latest Texas Forensic Flap Shows Major Gaps in Oversight of Scientific Evidence
By Edwin Colfax
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.
These revelations come at a time when a much-needed review of forensic oversight in Texas has been postponed indefinitely. Read More
Another Case of Mistaken Eyewitness Identification
Forest Shomberg walked free from a Wisconsin prison last month after serving six years for a crime he did not commit. Thanks to post-conviction DNA testing and increasing awareness of the unreliability of eyewitness testimony, Dane County District Attorney Brian Blanchard announced that the county will not retry the case. Every time I hear about people like Forest, I have deeply mixed emotions. As the first death-row inmate to be exonerated by DNA evidence. I know firsthand what it is like to spend time in prison for a crime I did not commit.
Forest overcame the longest of odds to win his freedom in a system that was convinced of his guilt. Imagine the patience and persistence that took. Imagine the hardships he endured being isolated from friends and family. Imagine never knowing if the truth would come out. Somehow, Forest and his loved ones found the strength to persevere. For this I am extremely happy.
But exonerations like Forest’s are also deeply unsettling to me because they demonstrate the very serious problems confronting our criminal justice system. The fact is we still get it wrong far more often than we should. Some of the same errors that caused me to spend almost nine years in prison for a crime I did not commit also led to Forest’s wrongful conviction.
Mistakes Continue to Highlight the Need for Forensic Science Oversight
By John F. Terzano
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.
Changing the “Convict at All Costs” Culture of Prosecutor’s Offices
By John F. Terzano
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.
With the unique role as both advocates and ministers of justice, prosecutors are the most powerful actors in our justice system. Prosecutors 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. Yet despite their power, they are rarely held accountable for violating their ethical obligations. This lack of accountability promotes the problematic culture that plagues prosecutors’ offices and contributes to wrongful convictions.
Prosecutors Must be Held Accountable for Misconduct
By John F. Terzano
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.
No matter the outcome of this particular case, it is yet another example of why it is so important for states to enact reforms to ensure that prosecutors who abuse their powers are held accountable for their actions. The Justice Project’s policy review, Improving Prosecutorial Accountability outlines suggested reforms such as the establishment of prosecutorial review boards to sanction prosecutors who abuse their power within the criminal justice system. Without the threat of meaningful professional discipline, prosecutors cannot be held accountable for their actions and are likely to continue to abuse their power to secure convictions, which threatens our public safety and the integrity of our criminal justice system.
Implementation of disciplinary measures that create a culture of accountability will result in a more fair and accurate justice system. Such measures will also encourage prosecutors to better fulfill their multiple and critical roles of convicting the guilty, protecting the innocent and guarding the rights of the accused. Until prosecutors face the real threat of discipline, such as fines, suspension, or even disbarment, it is likely that the egregious acts of prosecutorial misconduct that threaten our criminal justice system will only continue.
How Many More Innocent People Aren’t So Lucky?
By Edwin Colfax
Texas has made many headlines in recent years for the spate of exonerations of wrongfully convicted men. In most of these cases, fortuitous turns of events, along with the hard work of innocence advocates, led to solid proof that eyewitness evidence was mistaken. The same is true in the latest case, in which a Dallas judge released two men based on evidence developed by students at two of the state’s university-based innocence projects.
Claude Simmons Jr. and Christopher Scott were released from custody in Dallas on October 23 based on new evidence of innocence, including the corroborated confession of one of the true perpetrators. According to prosecutors, it was mistaken eyewitness testimony that convicted the men for a 1997 murder. The two had already served over a decade of their life sentences when the innocence project students persuaded Dallas D.A. Craig Watkins to review the cases and pursue the exonerating evidence.
These latest exonerations are noteworthy for the lack of DNA evidence in the case. To date, forty-one innocent Texans have been cleared by DNA. By all accounts, those men were lucky, despite the profound injustices they suffered. In each of their cases, biological evidence existed with the potential to clearly identify the perpetrator. That evidence was collected and, unlike the evidence in thousands of Texas cases, was not lost or destroyed. Finally, innocence advocates agreed to take their cases from the thousands of requests for assistance that they receive every year. The stars had to align to give those men the opportunity to be vindicated.
It is only because the crime was solved these many years later that Simmons and Scott walk free today. It is easy to imagine that the true perpetrator who confessed to the crime might not have ever done so. It is easy to imagine that the innocence advocates might never have accepted their case from the sea of requests because of a lack of forensic evidence. It is easy to imagine that the D.A.’s office would not be inclined to cooperate like Watkins’ office did. In short, it is all too easy to imagine that the injustice inflicted on Scott and Simmons would never have come to light.
Tim Cole Panel Begins Study Texas Wrongful Convictions
By John F. Terzano
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 Exonerations Stress the Need for Credible Evidence
By John F. Terzano
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. With little to lose, jailhouse snitches have great incentives to provide false information to prosecutors in exchange for leniency or other forms of compensation. Deals that are made between prosecutors and jailhouse snitches do not often come to light when a jury has to weigh the evidence is a case.
Texas Cannot Wait for Good Science in the Courtroom
By John F. Terzano
Last week, Texas Governor Rick Perry removed three members from the Texas Forensic Science Commission. The changes come at a critical juncture in the investigation of the flawed forensics behind the conviction of Cameron Willingham, who was executed in 2004 for allegedly setting the fire that killed his three daughters.
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.
