Florida’s Innocence Commission Releases Final Report

Florida’s Innocence Commission has concluded two years of work by releasing a final report of recommendations to eliminate or drastically reduce wrongful convictions in the state.

The Commission was founded in July of 2010 with a stated mission

to provide a mechanism to recommend to the Supreme Court of Florida solutions to eliminate or significantly reduce the causes for wrongful or erroneous convictions.  These solutions may include, but not be limited to, suggested rule proposals or amendments, statutory changes, or other procedural changes directly related to the wrongful conviction of the innocent.  The Commission brings together prosecutors, defense attorneys, judges, law enforcement, legislative representatives, and victim advocates, to work together as a collegial body to identify the common causes of wrongful convictions, and to recommend procedures to decrease the possibility of these convictions in the future.

The final report, submitted to Florida’s Supreme Court, is hundreds of pages long, with recommendations on issues ranging from false eye witness reports to reckless police work.

The downside is that many of the suggestions will be costly to implement. Some of the recommendations include:

• More training for prosecutors and criminal defense lawyers
• Higher salaries for state crime lab technicians who do DNA testing
• Assistance from the state in the form of repayment of educational loans for law school graduates who go to work in the criminal justice system.
• Police photo lineup changes, including the strong suggestion that the person administering the photos not know which individual is the suspect.
• Pass legislation that requires police to record all in-custody interrogations.
• Identify attorneys by name whose serious misconduct results in a conviction being reversed in appellate courts.

The commission was a 25-member panel consisting of legislators, judges, lawyers, law professors and law enforcement officers. Members included State Attorney Brad King and state Senator Gary Siplin.

Panel chairman Belvin Perry Jr., the chief judge in Orange-Osceola counties, says that the question is how you weigh the costs of the proposed changes. Is the cost of justice ever too high? Perry wrote,

Clearly, some of these recommendations will cost money and some may even argue the price of justice is too high. But the consequence of inaction is injustice.

henever one individual has been wrongly convicted we as a society suffer.

The establishment of the Commission and completed report are huge steps in the right direction  for seeking important improvements in Florida’s legal system. But the challenge now is to gain the political will and momentum to implement and finance the proposed changes in the pursuit of justice for all in the state of Florida.

Will the political cost of the pursuit of justice prove to be too high?

New Bill in Florida Proposes Double-Blind Lineups

In what is a terrific step forward in reducing wrongful convictions resulting from eyewitness misidentification, the Florida State Senate unanimously passed a bill submitted by Sen. Joe Negron that requires double-blind lineups in all criminal investigations. Senate Bill 1206, also known as the Eyewitness Identification Reform Act, requires law enforcement agencies to assure that the individual administering a photographic lineup doesn’t know which photo represents the suspect.

The Lakeland Ledger explains the importance of the reforms outlined in Senate Bill 1206:

A detective’s unknowing smile, smirk, nod or head shake can act as an affirmation to a witness that he chose the right person…From that point on, the picture that the witness views in his head is the one from the photo lineup, not from the crime scene. That indicator would not be possible when there is a third party who has no knowledge of the case or the suspect.

Senator Negron is a member of the Florida Innocence Commission, which was established last year by the State Supreme Court to examine wrongful convictions. So far, Florida cases account for 12 of the nation’s 267 DNA exonerations. The Innocence Project in Florida stated that in nine of these cases, convictions resulted from failures in identification procedure that are, at least partially, addressed by the Eyewitness Identification Reform Act.

On April 4, the Florida State Senate passed the bill 6-0. Senate Bill 1206 is a step in the right direction toward reducing one of the most common causes of wrongful convictions – a step that Pennsylvania could certainly use as well.

Read More:
Senate Bill 1206 (2011) – The Florida Senate
The Ledger – Eyewitness Identification Bill Would Require Double-Blind Line-ups
The Ledger – Document: Eyewitness Identification Reform Act
The Florida Independent – Innocence Commission Endorses Bill Addressing Police Photo Lineups

NJ Supreme Court Explores the Reliability of Witness Identification

Larry Henderson claims that Camden, NJ police influenced a witness’ identification of him as an accomplice in the shooting of Rodney Harper, for which Henderson was convicted in 2004. Now, the New Jersey Supreme Court will examine whether courts and law enforcement agencies should change the way they treat lineups and other identification procedures.

New Jersey is one of the few states that has statewide rules governing how lineups are to be conducted, and these rules have been in place for more than a decade. However, Henderson and his lawyers contend that these were not followed. They claim that the officer conducting the photo lineup moved photos around in a way that “nudged” the witness to choose Henderson’s picture. When this witness testified in front of the 2008 appellate panel that ultimately threw out Henderson’s conviction, he also stated that investigating officers – who are not permitted in the room during identification procedures – told him that his family would receive police protection if he cooperated.

The New Jersey State Supreme Court sent the matter to a special master, retired state appellate Judge Geoffrey Gaulkin. This June, Gaulkin issued an 86-page report urging police and courts to treat identifications in a more scientific manner, noting, as we have so often mentioned, the innumerable variables that can compromise the accuracy of eyewitness testimony. From this report, the Supreme Court could change the way that police departments and courts treat eyewitness identification.

Still, the state Attorney General’s Office contends that the laws that are already in place are sufficient and that the burden of proof is on the defense to show that the current system is flawed. The Innocence Project in New York has stated, however, that prosecutors need to better demonstrate that their identification methods are reliable.

Read More:
The Star-Ledger – Camden manslaughter case has N.J. Supreme Court questioning reliability of witness identifications
The Innocence Project – Understand the Causes: Eyewitness Misidentification
The Innocence Project – NJ Attorney General Guidelines for Preparing and Conducting Photo and Live
Lineup Identification Procedures

Texas Senate Passes Bill Codifying Lineup Procedures

The Texas Senate passed a bill that would require police to adopt written policies when conducting live and photo identification lineups. This is a big step in helping to reduce wrongful convictions, as without proper policies, investigators can sometimes lead witnesses, not necessarily intentionally, to pick a specific suspect out of a lineup.

The bill, by Sen. Rodney Ellis D-Houston, would require police departments to develop written policies that include provisions for “blind” lineups in which the administrators of the lineup don’t know which lineup member is the suspect, guidelines for instructions for witnesses, proper documentation of witness statements, and special guidance for witnesses who are illiterate or who do not speak English.

Several Texas exonerees testified in support of this bill. Texas leads the nation in the number of convicts exonerated by DNA evidence, and most of these cases involved eyewitness misidentification and lineups.

A few states and counties, including Wisconsin, New Jersey, and North Carolina, have policies in place that have improved the quality of lineup results, but the vast majority do not. Pennsylvania legislators should look to Texas as an example of one way to reform our policies on witness identification and lineups in order to make eyewitness identifications more reliable.

Read More:
Houston Chronicle: Senate Passes Criminal Lineup Bill
The Innocence Project – Fix the System: Priority Issues: Eyewitness Identification

Update: Prosecution Appeals a Special Jury Instruction Regarding Eyewitness Identification

A few weeks ago, we wrote about a Florida armed-robbery trial that was set to include special jury instruction regarding eyewitness identification. Now, prosecutors wish to block a measure that could influence public opinion about the accuracy of eyewitness identification not only in this trial but in all cases in which eyewitness testimony plays a part.

Karl Weeden, attorney for robbery suspect Markis Smith, successfully argued for special jury instruction that would have jurors consider the accuracy of eyewitness testimony and whether the witness had “adequate opportunity” and the “capacity” to properly identify the perpetrator. Orange Circuit Judge Walter Komanski’s 23-page order allowing this measure drew attention and interest from attorneys both in Florida and outside of the state, as it acknowledges the high potential for error in eyewitness identifications and may help to prevent false convictions.

Prosecutors plan to appeal the decision, however, arguing that standard jury instructions are sufficient in the Smith case. It’s been shown over and over, though, that eyewitness error is one of the main causes of wrongful convictions in cases where individuals have later been exonerated by DNA evidence. In Smith’s case, the main eyewitness is the victim, who saw the perpetrator for less than ten seconds. When she testifies, it will have been nearly two years since the robbery. The more time that passes between an incident and an identification, the more room for error. Prosecutors should be concerned above all with being sure that justice is served. It’s impossible to ignore the number of false convictions that have resulted from eyewitness error – in this case as well as so many others, the prosecution might be better served by accepting a measure that can keep innocent people from spending time in prison for crimes they didn’t commit.

Read more:
Orlando Sentinel – Orange Courts: Prosecution challenges judge’s order on special jury instructions

Death Row Inmate To be Retried Within 120 Days or Released

For 26 years, James Lambert has been on death row proclaiming his innocence of a 1982 murder. Yesterday, the Third Circuit Court of Appeals ordered that if the Commonwealth does not retry him within 120 days, he “shall be released.” A copy of the opinion is available here.

Stuart Lev from the Defender Association of Philadelphia Capital Habeas Unit and private attorney Daniel Silverman handled the case.

Mr. Lambert was convicted of killing two patrons at Prince’s Lounge in Philadelphia on September 23, 1982. At his trial, the only evidence to link him to the crime was the testimony of Bernard Jackson. Mr. Jackson was the original suspect in the case, and was the subject of an anonymous tip to the Police Department identifying him and another man, Bruce Reese (Jackson’s brother in law and Mr. Lambert’s eventual co-defendant) as the shooters. One of the barmaids identified Jackson as having been one of the 2 robbers, and another said she was “85-90 percent sure” Jackson was there.

Jackson initially told police that Reese and “another dude” (lated said to be Mr. Lambert) committed the robbery while he himself waited outside in a getaway car. Although his story changed significantly across numerous interviews (and his trial testimony), Mr. Jackson always maintained that Reese and Lambert were the only two involved in the murder.

After he was convicted and sentenced to death row, Mr. Lambert learned that Jackson had actually named another individual, L.W., as a “co-defendant.” That information, as admitted by the Commonwealth’s attorneys, should have been turned over to Mr. Lambert prior to trial but was not.

While it is unquestionable that the Commonwealth has an obligation to turn over information which is “exculpatory,” that rule is not a guarantee of a new trial if violated. Only if a court determines that the withheld information is “material” — that if the information had been disclosed to the defense “the result of the proceeding would have been different”–then a new trial is warranted.

Here, the Court of Common Pleas, the Pennsylvania Superior Court, the Pennsylvania Supreme Court, and the United States District Court all had held that, while the identification of another “co-defendant” should have been disclosed, it was not “material” and therefore, a new trial was not required.

The Third Circuit panel unanimously disgreed. Indeed, the Court went so far as to point out that the evidence suggested that Mr. Lambert may not have even been present at the crime scene or, at the least, that he was not the one who killed the bar patrons. Two witnesses identified Jackson as being at the bar, not Mr. Lambert. Mr. Lambert’s gun was a .32 caliber weapon and the victims were shot with a .38 caliber gun. Mr. Lambert is 6′ tall, and the witnesses described the shooter as “no more than 5’7″.” Because the Court felt that it did not have faith that the conviction was “worthy of confidence,” they ordered that the Commonwealth “shall retry Lambert within 120 days. If it fails to do so, Lambert shall be released.”

Sadly, once again, we see the effects of the failure of a Commonwealth agent to disclose all information that is material to a homicide or other criminal investigation. Had the information regarding L.W. been presented at trial, Mr. Lambert may have still been convicted of the murder or he may not have been. But at least there would not be lingering questions 26 years later as to his guilt or innocence, and the lives of all of those involved–from Mr. Lambert and his family to the victims’ families–would not have to be continually unsettled. The Pennsylvania Innocence Project supports increased training for police and prosecutors as to the requirements of disclosing exculpatory evidence, and for the increased access to police records post-convcition. Without those necessary tools and that oversight, we will likely continue to see cases such as this.